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DAILY  ADVERTISER 


m\  TO  BE  TAKEN  FROM 

46    CONGRESS    STREET, 


<*u 


DISCUSSIONS 


OH 


THE     CONSTITUTION 


PROPOSED   TO    THE 


PEOPLE    OF  MASSACHUSETTS 


THE    CONVENTION    OF    1853. 


BOSTON: 

LITTLE,    BROWN,    AND    COMPANY, 

112  ■Washington  Stbeet. 
1854. 


oakbridoe: 
xitcalf  and  compant,  printeks  to  the  tmtvbbsitt. 


It  has  been  deemed  desirable  to  preserve,  in  addition  to  the 
Debates  in  the  Convention  of  1853,  some  of  the  Discussions 
that  followed  the  presentation  by  that  body  of  the  Consti- 
tution which  they  proposed  to  the  people  of  Massachusetts. 
These  Discussions  are  here  printed,  in  the  order  in  which 
they  were  originally  published,  and  as  they  have  been  found 
in  the  perishable  records  of  the  period  that  produced  them, 
,  with  the  exception  of  Governor  Morton's  Address,  which  has 
been  revised  by  himself.     They  are  as  follows:  — 


1.  The  Letters  of  Phocion,  by  G.  T.  Curtis,     .     .     .1-80 

2.  The  Letters  of  Silas  Standfast,  by  G.  S.  Hillard,  81-172 

3.  The  Address  of  Samuel  Hoar,  at  Fitchburg,     .  173-183 

4.  The  Address  of  Marcus  Morton,  at  Taunton,    .  185  -  231 

5.  The  Address  of  C.  F.  Adams,  at  Quincy,     .     .  233-257 

6.  The  "  Remarks  "  of  J.  G.  Palfrey, 259-306 

All  of  them  have  heretofore  been  published,  with  the  names 
of  their  respective  authors,  or  are  now  avowed  by  them. 
Others  would  have  been  added,  but  the  volume  is  already 
larger  than  it  was  intended  to  be. 

As  it  has  been  published  chiefly  for  free  distribution,  any 
person  into  whose  hands  the  present  copy  may  fall,  and  who 
can  make  no  more  suitable  use  of  it,  is  requested  to  place  it 
in  some  public  library  near  to  his  own  residence. 

January  12, 1854. 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/discussionsonconOOmassiala 


LETTERS   OF   PHOCION, 


GEORGE   TICKNOR  CURTIS. 


FIRST  PRINTED  IN  THE  BOSTON  DAILY  ADVERTISER  AND 
COURIER,  AUGUST  —  NOVEMBER,  1853. 


LETTERS 


TO 


THE  PEOPLE  OF  MASSACHUSETTS 


OK 


THE  PROPOSED    CONSTITUTION. 


No.    I. 

'*  I  have  a  great  dislike  to  every  thing  that  tends  to  debase  the  spirit  of  the  peo- 
ple." —  De.  Feanklin,  in  the  Federal  Convention  of  1787. 

Having  read,  as  you  are  called  upon  to  read,  the  Address 
of  the  late  Constitutional  Convention,  and  the  project  of  a 
Constitution  which  it  urges  you  to  adopt,  I  propose  to  examine 
that  document,  and  the  various  changes  in  your  frame  of  gov- 
ernment which  it  seeks  to  effect. 

It  is  not  to  be  doubted,  that  you  are  called  upon  to  pass 
upon  the  most  momentous  question  that  can  be  submitted  to 
a  free  people  ;  and  any  citizen  of  the  State  may  well  exert 
himself,  according  to  the  measure  of  his  abilities  and  knowl- 
edge, to  aid  you  in  coming  to  a  safe  and  just  conclusion.  My 
name  could  add  nothing  to  the  intrinsic  weight  of  the  opinions 
which  I  shall  express,  and  it  ought  not  to  detract  from  the 
consideration  to  which,  of  themselves,  they  are  fairly  entitled. 
No  effort  will  be  made  to  conceal  it,  for  it  is  not  my  custom 
to  avoid  the  responsibility  attaching  to  any  opinions  I  may 
express.  But  you  will  allow  me  to  premise,  that  I  have  no 
personal  interest  in  this  question,  beyond  that  of  every  inhab- 
itant of  the  Commonwealth. 

To  me,  so  far  as  the  prospect  of  my  ever  filling  such  sta- 


4  ADDRESS    OF    THE    CONVENTION. 

tions  is  concerned,  it  is  a  matter  of  personal  indifference, 
whether  the  various  offices  which  this  proposed  Constitution 
undertakes  to  deal  with  are  filled  by  the  Executive  or  by  the 
people,  or  what  may  be  the  tenure  by  which  they  shall  be 
held. 

I  have  never  filled  any  offices  in  the  government  of  the 
State,  beyond  those  of  a  Justice  of  the  Peace  and  a  member 
of  the  lower  branch  of  the  Legislature  ;  and  by  the  blessing 
of  Heaven,  I  sincerely  hope  and  believe,  that  the  former  is  the 
highest  dignity  which  I  shall  ever  hold  hereafter.  My  interest, 
therefore,  in  the  great  question  which  is  to  agitate  the  Com- 
monwealth during  the  coming  autumn,  is  not  more  or  less 
than  yours ;  namely,  to  secure,  enjoy,  and  perpetuate  to  my 
children  the  best  government  that  republican  institutions  will 
admit.  1  firmly  believe  that  those  institutions  are  both  the- 
oretically the  best  that  human  wisdom  can  devise,  and  prac- 
tically necessary  in  our  American  societies ;  and  some  study 
of  their  history  has  enabled  me,  I  hope,  to  see  the  reasons  on 
which  this  belief  should  depend. 

Whether  the  great  principles  which  ought  to  lie  at  the 
foundation  of  such  institutions  are  or  are  not  satisfied,  in  the 
changes  which  you  are  now  asked  to  make  in  your  Constitu- 
tion, will  be  the  principal  inquiry  to  which  I  shall  ask  your 
attention. 

The  address  of  the  Convention  is  marked  by  a  plausible 
and  sententious  sophistry,  which  will  be  likely  to  impose  on 
none  but  shallow  minds.  It  seems  to  have  been  framed  in 
the  belief,  that  the  people  of  Massachusetts  can  be  deluded  by 
words  and  phrases.  It  is  as  unfair,  also,  as  it  is  sophistical. 
It  parades,  as  the  judgments  of  the  Convention,  results  that 
were  reached  only  by  majorities,  and  oftentimes  by  majorities 
largely  composed  of  those  who  deliberately  sacrificed  one 
opinion  for  the  sake  of  securing  votes  to  another. 

It  keeps  out  of  sight,  upon  many  most  important  and  in- 
deed vital  subjects,  the  fact,  that  a  very  large  minority  of  the 
Convention  protested  against  the  results  arrived  at,  as  a  viola- 
tion of  the  natural  and  the  civil  rights  of  those  whom  they 
represented,  and  suppresses  the  fact,  that  the  majority  marched 
to  their  conclusion  in  utter  disregard  of  a  principle  which  lies 


ADDRESS    OF    THE    CONVENTION. 


$ 


at  the  foundation  of  representative  government.  It  declares, 
for  instance,  that  "  a  majority  of  more  than  one  hundred  mem- 
bers determined  to  preserve  the  system  of  town  representa- 
tion "  ;  but  it  wholly  conceals  the  fact,  that  the  mode  in  which 
the  majority  determined  to  preserve  that  system  was  earnest- 
ly and  bitterly  complained  of,  as  a  violation  of  the  political 
equality  of  every  citizen  with  every  other  citizen.  What  then 
is  to  be  thought,  and  what  is  to  be  said,  of  a  document,  which, 
purporting  to  speak  in  the  name  of  a  public  deliberative  body, 
and  officially  signed  by  its  officers,  withholds  from  the  people 
of  the  Commonwealth  the  important  and  necessary  informa- 
tion, that  a  large  portion  of  their  delegates  contended  and 
complained,  that  the  civil  rights  of  their  constituents  were  dis- 
regarded and  trampled  upon  by  the  very  majority  that  is  thus 
paraded  in  justification  of  the  measure  proposed? 

Did  the  majority  of  the  committee,  by  whom  this  address 
was  prepared,  and  did  the  officers  of  the  Convention,  by  whom 
it  was  signed,  find  themselves  unable  to  lay  aside  the  partisan 
character  which  they  had  worn  throughout  the  proceedings, 
when  they  came  to  address  the  whole  people  of  the  State  in 
the  name  of  the  whole  Convention  ?  Did  they  suppose  that 
it  was  either  common  fairness  or  common  honesty,  to  lay  be- 
fore the  people  of  the  Commonwealth  the  views  and  opinions 
of  the  majority,  and  to  omit  all  mention  of  the  fact,  that  other 
members  of  their  body  protested  against  those  views  and 
opinions,  as  a  violation  of  the  principles  on  which  all  political 
equality  in  a  free  government  depends  ?  They  may  answer 
this  question  if  they  can. 

It  has  always  been  supposed  to  be  of  the  essence  of  repub- 
lican governments,  that  the  rights  of  minorities  should  be  pre- 
served ;  and  it  has  been  the  peculiar  boast  of  such  govern- 
ments, that  they  and  they  alone  can  preserve  and  protect  the 
political  equality  of  all  the  citizens.  In  monarchical  and  aris- 
tocratic governments  this  is  impossible,  and  does  not  profess 
to  be  accomplished  ;  for  such  governments  are  founded  upon 
the  negation  of  absolute  and  inherent  rights  in  the  whole  peo- 
ple of  an  equal  character,  and  upon  the  idea,  that  whatever 
rights  are  at  any  time  found  in  their  possession  are  conces- 
sions from  those  who  are  above  them.  But  it  has  been  the 
1* 


6  THE  CONVENTION  UNNECESSARY. 

peculiar  merit  of  our  free,  republican,  and  representative  gov- 
ernments, that  they  preserve  equal  rights  to  all,  because  every 
individual  forms  a  part  of  the  source  whence  all  political 
power  proceeds ;  that  while  the  majority  are  to  govern,  they 
are  so  to  govern,  as  to  give  every  one  of  the  minority  equal 
facilities  and  equal  opportunity  with  every  other  citizen  to  be- 
come in  his  turn  one  of  the  majority,  whose  will  is  to  consti- 
tute for  the  time  being  the  law  of  the  land.  It  was  reserved 
for  the  Solons  of  our  late  Convention,  to  discover  that  this 
theory  of  republican  governments  is  of  no  practical  conse- 
quence or  value ;  that  minorities  may  be  oppressed,  and  kept 
in  the  position  of  minorities,  under  republican  forms,  as  well 
as  under  a  monarchy,  an  oligarchy,  or  an  absolute  despotism ; 
and  that  representative  institutions  may  be  so  contrived,  as  to 
deprive  large  portions  of  the  people  of  the  power  of  becoming 
a  part  of  the  majority,  that  is  to  give  law  to  the  community. 
"Whether  this  discovery  was  worth  the  great  expenditure  it 
has  cost,  —  whether  it  will  not  be  found,  should  it  ever  go  into 
practical  operation,  to  be  a  great  injury  and  a  serious  blow  to 
the  cause  of  constitutional  republican  liberty,  time  will  show. 

But  I  will  not  anticipate  the  topics  which  you  will  be  called 
upon  to  consider. 

The  Address  of  the  Convention  begins  with  the  somewhat 
prominent  assertion,  that  "  the  necessity  for  the  Convention 
was  great."  Let  the  truth  of  this  statement  be  tried  by  the 
facts.  The  pay-roll  of  the  Convention  amounts  to  one  hun- 
dred and  fourteen  thousand  ninety-two  dollars.  Besides  this 
great  sum,  there  is  due  to  certain  printers,  on  a  wasteful  con- 
tract for  reporting  and  printing  the  debates,  another  large  sum, 
the  amount  of  which  is  not  publicly  known,  if  it  has  been  even 
ascertained,  —  but  which,  it  is  estimated,  by  good  judges,  will 
be  found  to  exceed  thirty  thousand  dollars.  The  other  inci- 
dental expenses  are  not  known,  but  it  is  highly  probable  that 
the  whole  cost  of  the  Convention  will  not  fall  short  of  one  hun- 
dred and  fifty  thousand  dollars.  The  political  party  or  par- 
ties who  originated  the  project  of  this  Convention  will,  unless 
I  greatly  mistake  the  final  result  of  their  labors,  be  the  first 
set  of  men,  in  the  history  of  Massachusetts,  to  cause  such  an 
expenditure  of  the  public  money,  without  leaving  any  thing  to 


THE    CONVENTION    UNNECESSARY.  7 

show  for  it  in  the  institutions  of  the  Commonwealth.  The 
necessity  must  have  been  great  indeed,  to  justify  such  an  ex- 
penditure, at  a  time  when  the  Commonwealth  has  not  a 
dollar  of  surplus  in  her  treasury,  and  must  lay  a  tax  upon  her 
people  in  order  to  meet  the  current  expenses  of  government, 
and  to  keep  the  credit  of  the  State  untouched  in  the  money- 
markets  of  the  world.  But  what  was  the  necessity  ?  In  the 
year  1780,  before  the  close  of  the  Revolutionary  war,  the  peo- 
ple of  Massachusetts  formed  a  Constitution,  which  has  been 
as  near  an  approach  to  a  perfect  government  as  the  world  has 
seen.  Forty  years  afterwards  it  required  and  received  some 
revision  ;  but  all  its  great  essential  features,  all  the  wise  and 
careful  provisions,  which  the  men  of  the  Revolutionary  age, 
with  a  wonderful  foresight  and  an  extraordinary  capacity  for 
political  construction,  engrafted  into  it,  remained  untouched. 
From  the  year  1820  to  the  present  hour,  no  real  grievance  has 
existed,  and  no  complaint  has  been  made  of  the  working  of 
any  of  the  institutions  of  the  State,  with  the  single  exception, 
that  the  basis  of  the  House  of  Representatives  has  been  found 
practically  inconvenient,  in  consequence  of  the  corporate  right 
of  representation  reserved  to  the  cities  and  towns. 

Granting,  either  for  the  sake  of  argument,  or,  as  I  am  ready 
to  do,  without  reservation,  that  the  basis  of  representation 
needed  to  be  reformed,  it  remains  for  those  who  allege  the  ne- 
cessity for  the  late  Convention,  as  a  justification  for  its  doings 
and  its  expenses,  to  show,  in  the  first  place,  that  the  represen- 
tation could  not  have  been  amended  without  a  Convention  ; 
and  in  the  second  place,  that  a  reform  of  the  representation 
necessarily  involved  and  required  a  radical  change  in  the 
structure  and  basis  of  every  other  department  of  the  govern- 
ment. That  a  public  necessity  for  a  more  equal  and  satisfac- 
tory adjustment  of  the  system  of  representation  should  be  put 
forth  as  a  plea  to  justify  a  radical  change  in  the  tenure  of  the 
judiciary ;  a  restriction  of  the  appointing  power  of  the  Gov- 
ernor, so  as  to  strip  the  office  of  almost  all  the  trusts  which 
the  wisdom  of  our  ancestors  had  confided  to  it ;  an  abolition 
of  all  tax  qualification  for  voters,  and  an  infliction  of  "  sealed 
envelopes  "  as  a  constitutional  principle  for  the  regulation  of 
the  ballot;  together  with  all  the  other  innovations  which  this 


S  A    PARTY    PROJECT. 

CJonvention  has  devised,  —  is  satisfactory  proof,  that  the  men 
who  originated  this  scheme  had  other  objects  to  accomplish, 
besides  meeting  the  want  of  a  better  basis  for  the  House  of 
Representatives,  which  was  all  that  the  people  ever  contem- 
plated or  designed  to  touch.  And,  even  with  regard  to  that 
object,  every  citizen  of  the  Commonwealth  knows,  that  the 
existing  Constitution  contains  a  provision  for  its  own  amend- 
ment, fully  sufficient  for  the  occasion,  and  wisely  designed  to 
accomplish  the  process  of  amendment  in  contra-distinction  to 
revolution.  That  provision  is,  that  any  amendment  which 
shall  be  passed  by  two  successive  Legislatures,  receiving  a 
majority  of  votes  in  the  Senate,  and  the  votes  of  two  thirds 
of  the  House,  if  afterwards  ratified  by  a  majority  of  the  peo- 
ple, shall  become  a  part  of  the  Constitution.  The  object  of 
this  provision  was  twofold.  First,  to  avoid  the  excitement 
and  expense  of  extraordinary  deliberative  assemblies,  dealing 
with  the  fundamental  law.  Secondly,  to  secure  the  operation 
of  a  principle,  which  has  always  formed  a  cardinal  doctrine  of 
our  American  governments  since  their  establishment;  namely, 
that  it  is  both  expedient  and  necessary,  in  order  to  amend 
a  Constitution,  that  the  assent  of  the  existing  government 
should  be  given  to  the  proposed  change.  It  is  the  absence  of 
this  assent,  which  makes  the  distinction  between  amendment 
and  revolution;  and  in  nothing  did  the  framers  of  the  Consti- 
tution of  the  United  States  show  more  wisdom,  than  they  did 
in  making  every  step  in  their  progress  from  the  Confederation 
to  the  new  Constitution  subject  to  the  sanction  of  the  old 
Congress. 

What  good  reason,  then,  I  beg  to  ask,  can  be  alleged,  why 
the  Legislature  should  not  have  been  applied  to,  to  prepare  a 
suitable  system  of  representation,  to  be  laid  before  the  people 
for  their  adoption  ?  Such  a  course  of  proceeding  would  not 
have  cost  the  Commonwealth  a  dollar ;  and  there  is  but  one 
reason,  if  they  were  to  speak  the  truth,  that  can  be  given  by 
the  leaders  of  the  Coalition  party,  why  this  course  was  not 
adopted,  and  that  reason  is,  that  the  Legislature  would  not 
have  framed  a  system  that  would  have  suited  their  party  pur- 
poses. No  such  scheme  as  that  which  disgraces  the  proposed 
Constitution  could  ever  have  proceeded  from  two  successive 


A    PARTY    PROJECT.  tl 

Legislatures  of  Massachusetts ;  and  the  fact,  that  these  lead- 
ers avoided  the  course  prescribed  in  the  existing  Constitution, 
and  the  scheme  which  they  have  concocted  in  a  Convention, 
prove  that  the  real  necessity  of  the  case  was  a  necessity  for 
the  means  of  attaining  political  power  for  themselves  and 
their  followers. 

Unfortunate,  beyond  the  ordinary  measure  of  misfortune,  is 
ihat  community  which  contains  too  many  of  those  patriotic 
persons,  who  are  ambitious  of  serving  the  public,  and  who 
cannot  reach  the  object  of  their  ambition,  without  pulling 
down  the  great  landmarks  which  society  has  erected  for  its 
security  and  defence.  Unless  I  am  greatly  mistaken,  the 
Commonwealth  contains  at  the  present  day  an  unusually  large 
number  of  such  persons ;  of  men,  I  mean,  whose  business  is 
politics ;  and  among  them  are  some  who  seem  to  have  no 
other  profession  or  employment.  Certainly,  an  ambition  to 
serve  one's  country  in  public  office  may  be  a  laudable  ambi- 
tion ;  and  I  am  not  prepared  to  say,  if  an  individual  has  a 
fancy  for  this  mode  of  satisfying  the  wants  of  his  existence, 
that  a  livelihood  gained  in  public  offices  may  not  be  respect- 
ably and  honorably  gained.  But  the  characters  and  designs 
of  men  must  be  judged  of  by  their  acts,  and  political  parties 
are  only  aggregations  of  individual  men.  Whenever  it  is  ap- 
parent, that  a  set  of  men  cannot  attain  political  power  in  a 
State  by  pursuing  the  ordinary  roads  of  ambition,  and  by  the 
conduct  which  usually  gains  for  individuals  the  confidence  of 
the  public;  —  when  their  path  to  power  lies  through  the  ruins 
of  ancient  institutions,  and  over  the  fragments  of  great  princi- 
ples of  equality,  security,  and  justice;  —  when,  in  fine,  they 
must  remodel  every  thing,  and  are  found  so  remodelling  it  as 
to  secure  their  own  advantage  at  the  expense  of  the  best  inter- 
ests of  society ;  —  then  the  conclusion  is  irresistible,  that  the 
"  necessity  "  which  impels  them  begins  and  ends  in  the  great 
law  of  self-interest  and  self-aggrandizement.  You  will  find 
that  there  is  no  other  supposition,  upon  which  you  can  account 
for  the  monstrous  scheme  of  injustice  and  radicalism,  that  has 
been  laid  before  you  for  a  Constitution. 

Phocion. 


10  ITS    OBJEOTS    WERE    PARTISAN. 


No.  II. 

In  the  paper  which  I  had  the  honor  of  submitting  to  you, 
on  Monday  last,  I  charged,  that  the  leaders  of  the  Coalition 
party,  by  whom  the  proposed  Constitution  has  been  formed, 
had  shaped  its  provisions  with  the  unfair  and  selfish  purpose 
of  accomplishing  their  own  parly  objects.  I  now  invite  your 
attention  to  some  more  particular  proofs  of  this  charge.  Per- 
haps there  is  no  more  convincing  proof  of  it,  apart  from  the 
character  and  operation  of  the  specific  changes  which  they 
may  desire  you  to  adopt,  than  is  to  be  found  in  the  manner  in 
which  they  require  you  to  vote  upon  the  results  of  their  labors. 
They  have  laid  before  you  seven  or  eight  distinct  propositions. 
In  the  first  of  these  propositions,  upon  which,  as  if  it  were 
one  object,  you  must  deposit  your  ballots,  yes  or  wo,  there  are 
embraced  a  variety  of  distinct  changes,  in  regard  to  which  it 
is  impossible  for  a  majority  of  the  people  to  entertain  the 
same  opinion  for  or  against  them  all,  and  concerning  which 
very  few  individuals  can  be  found,  who  would  vote  in  the 
same  way  upon  each  of  them,  from  any  but  party  motives. 
These  subjects  are  so  widely  different  in  their  character,  and 
the  changes  proposed  are  subject  to  objections  of  such  very 
different  degrees  of  force,  that  it  is  impossible  to  assign  any 
fair  motive  for  placing  them  before  you  collectively  in  one 
proposition.  Consider,  for  a  moment,  that,  when  the  ballots 
of  a  whole  people  are  cast  upon  any  day  of  a  general  election, 
even  for  a  single  officer,  how  many  voters  are  obliged  to  come 
to  the  polls  and  deposit  the  single  ballot,  in  which  resides  all 
the  power  they  can  exercise  over  the  subject,  with  many  com- 
promises of  opinion  and  feeling,  and  with  many  doubts  as  to 
the  correctness  of  their  final  decision.  Multiply  this  embar- 
rassment many  times,  and  add  to  it  the  fact  that  the  subject, 
on  which  that  single  ballot  is  to  be  cast,  concerns  the  whole 
structure  of  the  frame  of  government,  and  the  principles  on 
which  it  is  to  rest,  and  you  can  form  some  idea  of  the  extreme 
impropriety  of  confining  a  voter  to  a  single  ballot,  upon  a 
proposition  which  embraces  alike   questions  of  moral   and 


ITS    OBJECTS    WERE    PARTISAN. 


11 


political  principle,  —  questions  of  mere  expediency,  —  and 
questions  with  which  neither  principle  nor  expediency  has 
any  thing  to  do.  A  deliberate  and  purposed  arrangement  for 
thus  controlling  the  judgments  of  a  people,  and  forcing  them 
into  a  position  where  they  cannot  express  their  judgments 
equally  upon  all  the  subjects  involved,  can  be  characterized  by 
no  milder  term  than  by  one  which  describes  it  as  a  fraud  upon 
their  rights.  The  case  is  wholly  different,  in  point  of  principle, 
and  the  situation  of  the  people  is  wholly  different,  from  the 
case  of  the  first  formation  and  acceptance  of  a  free  constitution. 
On  such  an  occasion,  from  the  very  nature  of  the  case,  the 
whole  instrument  might  have  been  voted  upon,  —  although  it 
was  not  in  Massachusetts,  —  as  one  frame  of  government,  for 
acceptance  or  rejection.  There  is  no  previous  Constitution  to 
be  altered  or  amended ;  what  is  presented  might  be  acted  upon 
as  a  whole,  and  if  accepted,  society  is  organized  according  to 
its  provisions ;  if  rejected,  it  must  begin  anew,  and  make  a 
fresh  attempt  at  organization.  Hence  it  is,  that  in  our  previ- 
ous history,  both  State  and  national,  the  language  has  been 
held  and  the  principle  has  been  acted  upon  with  perfect  pro- 
priety, that  the  particular  Constitution  offered  might  not  be  the 
best  that  could  possibly  be  devised,  or  the  one  that  would  suit 
all  men  alike;  but,  inasmuch  as  something  must  be  done,  and 
an  entire  frame  of  government  must  be  adopted,  to  save  soci- 
ety from  anarchy,  individual  objections  to  particular  provisions 
would  be  sacrificed  to  the  general  good.  But  when  a  state 
has  long  possessed  a  frame  of  government,  devised  by  the  in- 
telligence and  established  by  the  will  of  its  people,  —  when 
the  question  is,  not  whether  the  government  shall  continue  to 
be  republican,  or  be  moulded  to  some  other  form,  but  simply 
whether  the  principles  by  which  some  of  its  departments  are 
regulated  shall  be  changed,  —  there  is  no  such  necessity  for  re- 
quiring a  vote  upon  the  collective  changes  proposed,  which  is 
to  adopt  the  whole,  or  reject  the  whole,  as  one  proposition. 
There  is  not  only  no  necessity  for  it,  but  it  is  impossible  that 
it  should  result  in  a  fair  and  free  expression  of  the  wall  of 
society  upon  the  various  and  dissimilar  subjects  involved. 
This  is  too  plain  to  require  particular  illustration.  You  will 
feel  it  to  be  true  when  you  come  to  the  ballot-box  next  Novem- 


12  TRICKS    OF    PARTY. 

ber,  and  undertate  to  deposit  your  votes  upon  this  first  propo- 
sition of  the  Convention. 

And  it  appears  to  me  perfectly  obvious,  that  the  framers  of 
these  propositions  were  conscious  that  their  schemes  required 
to  be  carried  by  no  inconsiderable  exercise  of  political  legerde- 
main. They  have  put  into  their  first  proposition  two  radical 
and  sweeping  changes  in  the  institutions  of  the  State,  in  both 
of  which  questions  of  the  highest  principle  are  involved.  I 
allude,  of  course,  to  the  new  basis  which  they  have  devised 
for  the  House  of  Representatives,  (which,  I  shall  have  occasion 
to  show  hereafter,  involves  a  violation  of  justice  and  natural 
right,)  and  to  the  proposed  change  in  the  tenor  of  the  judi- 
ciary from  an  office  during  good  behavior  to  an  office  for  ten 
years.  They  have  also  placed  in  the  same  proposition  a 
change  in  the  mode  of  electing  the  Senate,  which  does  not 
seem  to  involve  any  question  of  principle ;  namely,  requiring 
the  Senators  to  be  elected  for  districts  instead  of  counties. 

These  three  changes,  namely,  the  representative  system, 
the  Judiciary,  and  the  Senate,  required  evidently,  in  the  judg- 
ment of  the  framers  of  the  proposition,  all  the  make-weights 
that  could  be  thrown  into  the  scale.  If  the  bitter  pills  of  the 
two  first  could  be  sufficiently  gilded,  the  inoflfensiveness  of  the 
third,  in  point  of  principle,  would  be  at  least  a  negative  virtue. 
Men  who  were  to  be  brought  to  the  ballot-box,  and  there 
made  to  impose  upon  their  fellow-citizens  such  a  system  of 
representation  as  is  here  devised,  and  to  pull  down  the  Judi- 
ciary of  Massachusetts  from  the  tenure  on  which  it  has  rested 
for  two  hundred  years,  must  have  something  to  attract  and 
distract  their  attention,  to  tickle  their  vanity,  and  to  flatter 
their  love  of  power.  Accordingly,  you  are  asked  in  this  same 
proposition  to  do  some  things  which  are  innocent  but  ridicu- 
lous, and  some  things  which  are  surely  inexpedient  and  un- 
wise ;  but  almost  all  of  which  address  themselves  to  what 
politicians  are  in  the  habit  of  believing  to  be  the  weak  side  of 
the  people.  You  are  asked,  for  instance,  to  abolish  the  prop- 
erty qualification  of  Governor  and  Lieutenant-Governor,  and 
to  dock  off  from  the  one  the  harmless  title  of  "  His  Excellen- 
cy "  and  from  the  other  the  equally  harmless  addition  of  "  His 
Honor."     You  are  asked  to  elect  the  members  of  the  Council, 


TRICKS    OF    PARTY.  13 

the  Attorney-General,  the  Secretary  of  the  Commonwealth, 
the  Auditor  and  Treasurer,  the  Judges  and  Registers  of  Pro- 
bate, the  Sheriffs,  Clerks  of  Court,  Commissioners  of  Insolven- 
cy, District  Attorneys,  and  Trial  Justices,  instead  of  having 
them  appointed  by  the  Governor,  or  chosen  by  the  Legislature. 
You  are  asked  to  abolish  the  tax  qualification  of  voters,  and 
to  adopt  the  "  secret  ballot"  as  a  constilulional  principle.  You 
are  asked  also  to  establish  the  plurality  principle  in  the  elec- 
tion of  certain  officers,  to  make  certain  changes  concerning 
Harvard  University,  the  school  fund,  and  the  militia.  All  this 
mixture  of  subjects  involves,  so  far  as  I  can  perceive,  no  im- 
portant question  of  principle,  but  I  shall  have  occasion  to  sub- 
mit to  you  hereafter,  that  many  of  them  involve  very  grave 
questions  of  expediency.  They  are  thrown  out  as  so  many 
tubs  to  the  whale ;  and  although  I  do  not  at  all  concur  in  the 
estimate  in  which  politicians  of  a  certain  school  are  accus- 
tomed to  hold  the  sense  and  intelligence  of  the  people  of 
Massachusetts,  —  treating  them  as  a  people  who  are  to  be 
caught  by  such  devices,  —  I  can  easily  see,  in  these  things, 
proof  that  such  is  the  estimate  in  which  you  are  held,  by  those 
who  propose  to  you  such  objects  for  your  constitutional  action, 
in  the  same  category,  and  under  the  same  ballot,  with  the  rep- 
resentative system  and  the  tenure  of  the  Judiciary. 

But  let  us  look  a  little  further  into  this  first  proposition,  in 
connection  with  what  is  avowed  in  the  Address  of  the  Con- 
vention. The  character  and  operation  of  the  system  of  rep- 
resentation embraced  in  it  may  be  examined  hereafter.  It  is 
sufficient  to  observe,  here,  that  the  system  is  confessed  in  the 
Address  to  be  unequal.  You  will  see,  when  you  come  to  ex- 
amine it,  that  it  is  grossly  and  oppressively  unequal  and  un- 
just. The  important  admission  of  the  Address  is,  that  "  the 
inequality  of  representation  between  particular  towns,  when 
tested  solely  by  population,  may  in  some  cases  apparently  be 
great."  The  palliations  offered  for  this  inequality  we  will  dis- 
cuss in  another  connection.  Observe,  now,  that  this  system, 
thus  confessedly  unequal,  —  more  unequal  than  any  former 
system,  for  which  the  separate  existence  of  the  towns  has  been 
supposed  to  be  a  justification,  and  so  grossly  unequal  as  to 
have  startled  the  public  mind  by  its  bold  and  daring  injustice, 
2 


14  TRICKS    OF    PARTY. 

—  has  been  artfully  wrapped  up  with  the  tender  of  a  district 
system  based  upon  population,  which  you  can  only  reach  at  a 
future  day,  by  first  adopting  the  system  devised  by  a  majority 
of  the  Convention.  After  explaining  the  motives  of  the 
majority,  and  defending  the  system  on  which  they  require  you 
to  vote,  the  Address  proceeds  to  say  :  — 

*'  But  our  deliberations  have  not  been  confined  to  the  proposed  sys- 
tem. Many  of  your  delegates  are  of  opinion,  that  the  State  should  be 
divided  into  districts  for  the  election  of  representatives  according  to 
the  number  of  votes  in  each.  In  this  opinion  a  large  majority  of  the 
Convention  do  not  concur ;  but  we  think  it  our  duty  first  to  interpret 
the  people's  will,  and  then  to  give  a  fair  opportunity  for  its  expression 
upon  all  questions  of  importance,  whenever  such  a  course  is  practica- 
ble. We  have,  therefore,  made  a  constitutional  provision  that  the 
Legislature  of  1856,  under  the  census  to  be  taken  in  1855,  shall  pre- 
sent a  district  system,  which  may  be  then  substituted  for  the  one  rec- 
ommended by  the  Convention,  if  in  the  judgment  of  the  whole  peo- 
ple it  is  wise  to  make  the  change." 

So  that  the  course  of  the  Convention  is  this.  They  devise 
a  system  of  representation,  which  they  admit  is  unequal 
towards  the  cities  and  large  towns,  and  they  address  this  sys- 
tem directly  to  the  selfishness  and  love  of  power  of  a  majority 
of  the  legal  voters  of  the  Commonwealth  ;  for  it  is  undeniable 
that  the  voters  in  the  towns  which  will  least  feel  the  operation 
of  the  inequality,  and  the  towns  which  will  gain  by  it,  taken 
with  those  voters  elsewhere  who  will  embrace  it  from  party 
motives,  will  be  a  majority  of  the  voters  of  the  State.  The 
system  is  tied  up  with  the  specious  offer  of  an  equal  system 
of  districts,  to  be  provided  for  by  the  Legislature  three  years 
hence,  and  to  be  tendered  to  that  same  majority  of  legal  voters, 
as  a  substitute  for  the  system  under  which  they  will  have  pre- 
viously gained  a  power  in  the  Legislature,  which  they  will 
then  be  persuaded  they  ought  not  to  surrender.  If,  therefore, 
the  first  proposition  of  the  Convention  shall  be  adopted,  the 
Constitution  of  Massachusetts  will  stand  thus :  A  system  of 
representation  will  be  in  force  that  is  so  unequal  as  to  give  to 
one  man,  in  some  instances,  nine  times  as  much  political 
power  as  to  another,  and  this  system,  established  by  the  will 
of  a  majority  of  the  legal  voters  of  the  State,  we  must  live 


TRICKS    OF    PARTY".  16 

under  for  three  years,  before  we  can  even  get  the  right  to  make 
what  will  then  be  an  entirely  ineffectual  appeal  to  that  major- 
ity, for  the  substitution  of  a  just  and  equal  system. 

Can  any  thing  be  more  grossly  apparent  than  the  purpose 
of  this  contrivance  ?  Was  there  ever  any  thing  more  plainly 
devised /or  the  eslahlishment  and  perpetuation  of  the  power  of 
party  ?  If  we  can  suppose  this  appeal  to  what  are  called  in 
the  Address  the  "rural  districts,"  and  "  the  different  interests 
and  sections  of  the  Commonwealth,"  to  be  successful ;  if  the 
sense  of  justice  and  the  moral  principle  of  the  voters  in  those 
districts  cannot  resist  this  appeal  in  1853,  does  any  man  be- 
lieve that  in  1856  these  leaders  of  the  Coalition  party  will  not 
press  the  same  appeal  against  the  adoption  of  a  system  of 
equal  representation  by  districts  ?  Does  any  man  suppose, 
that  we  shall  not  hear  the  same  language  employed  to  excite 
the  jealousies  of  "  the  different  interests  and  different  sections 
of  the  Commonwealth"  against  each  other?  that  "the  rural 
districts,"  and  "  the  agricultural  and  mechanical  population," 
will  not  then  be  told,  as  they  are  now  told  in  this  Address, 
that  this  unequal  system  only  secures  to  them  "  their  reason- 
able share  of  power  in  one  branch  of  the  Legislature  "  ?  that 
they  will  not  then  be  invited  to  consider  that  the  Governor 
represents  the  voters  of  the  State,  and  that  the  Council  and 
Senate  represent  population  without  reference  to  voters,  and 
therefore  that  they  need  have  no  qualms  of  conscience  about 
the  lion's  share,  which  they  have  gained,  and  may  well  keep, 
in  the  House  of  Representatives  ? 

If  this  language,  and  these  motives,  are  sufficient  now  for 
the  acquisition  of  such  power,  they  will  be  sufficient  for  its 
retention  hereafter.  If,  within  the  cities  and  towns  against 
which  this  system  is  to  operate,  there  are  voters  enough  now 
to  join,  from  party  motives,  with  those  in  the  smaller  towns 
on  whom  party  motives  and  local  and  sectional  policy  will 
both  be  brought  to  bear,  and  thus  secure  the  establishment  of 
the  system  recommended  by  the  Convention,  the  hope  that  it 
will  be  quietly  and  generously  surrendered  in  1856  would  be 
an  idle  delusion. 

They  who  gain  power  by  such  means  as  the  majority  of 
this  Convention  have  contrived,  are  not  men  to  be  very  scru- 


16  TRICKS    OF    PARTY. 

pulous  about  the  means  of  retaining  it.  There  ia  no  reason- 
able hope  for  the  final  establish nnent  of  a  fair,  equal,  and  safe 
system  of  representation  in  this  Commonwealth,  excepting 
through  the  defeat  of  this  proposition  of  the  Convention,  by 
the  sense  of  justice,  the  love  of  right,  and  the  moral  principle 
of  a  majority  of  the  people,  wherever  they  may  be  situated  or 
found. 

Let  us  look  at  some  of  the  justifications  put  forth  by  the 
Convention  to  palliate  the  injustice  of  their  system.  I  pass 
by  the  unstatesmanlike  and  anti-republican  notion  of  different 
interests  and  different  sections  in  such  a  Commonwealth  as 
this,  requiring  to  be  recognized  and  confirmed  by  its  Constitu- 
tion. It  has  been  admirably  demonstrated  by  Mr.  Choate,  in 
his  speech  on  this  subject,  —  a  speech  which  contains  the 
true  philosophy  of  our  institutions,  —  that,  in  a  homogeneous' 
population  like  that  of  Massachusetts,  where  every  man,  to 
use  his  apt  illustration,  is  within  a  day's  ride  of  every  other 
man,  —  where  pursuits  and  callings  of  all  kinds  are  insepara- 
bly intermingled,  and  where  the  same  natural  rights  are  ad- 
mitted by  the  civil  law  to  belong  equally  to  all,  —  a  diversity 
of  interests  requiring  to  be  adjusted  by  positive  law  is  the  last 
idea  which  ought  to  be  admitted  into  a  constitution.  But  if 
men  who  are  loudest  in  their  profession  of  the  democratic 
principle  of  equal  rights  choose  to  desert  and  deny  their  own 
principles,  I  am  not  disposed  to  exert  myself  to  convince  them 
of  their  error.  If  I  can  do  a  little  towards  preventing  them 
from  misleading  others,  it  will  be  all  I  can  desire.  With  this 
view,  let  me  ask  you  to  examine  one  of  the  great  sophistries 
of  this  Address,  which  was  intended  to  be  extremely  effective. 
"  We  invite  you,"  says  the  Address,  in  justification  of  the  ad- 
mitted inequality  of  this  system  of  representation,  —  "to  con- 
sider that  the  Governor  represents  the  voters  of  the  State ; 
that  the  Council  and  Senate  represent  population  without  any 
reference  to  voters,  and,  as  a  consequence,  that  these  two  de- 
partments of  the  government  will  eventually  be  in  the  control 
of  the  cities  and  chief  towns ;  and,  finally,  that  we  have 
sought  only  to  secure  to  the  several  districts  and  to  the  agri- 
cultural and  mechanical  interests  a  reasonable  share  of  power 
in  one  branch  of  the  Legislature.    This  influence  gives  to  this 


TRICKS    OF    PARTY.  17 

portion  of  the  people  power  to  assent  to,  but  never  to  dictate, 
the  policy  of  the  government." 

The  share  of  power  thus  sought  to  be  secured  for  the  "  rural 
districts  "  in  the  House,  is  admitted  to  be  more  than  their 
equal  share,  if  their  rights  are  measured  by  population  or  by 
voters ;  and,  in  some  instances,  on  a  comparison  of  one  place 
with  another,  the  figures  will  prove  it  to  be  as  nine  to  one. 
So  that  the  logic  of  the  Convention  is,  that,  because  the  cities 
and  large  towns  may  have  voters  enough  to  choose  the  Gov- 
ernor, and  population  enough  to  elect  a  majority  of  Senators, 
upon  a  system  of  equality  with  respect  to  those  departments, 
therefore  the  principle  of  equality  ought  not  to  prevail  in  the 
basis  of  the  House,  but  a  smaller  number  of  voters,  and  a  less 
amount  of  population,  ought  to  elect  a  larger  proportion  of 
representatives  than  a  larger  population  or  a  greater  number 
of  voters. 

Now,  in  opposition  to  this  theory,  on  which  you  are  asked 
by  the  Address  to  fix  your  contemplation,  you  may  well  be 
invited  to  consider  what  an  act  of  legislation  is,  and  what  it 
involves.  In  every  government,  the  Legislative  Power, 
whether  acting  through  a  greater  or  less  number  of  branches, 
is  a  unit.  In  our  system,  it  is  divided  into  three  coordinate 
branches,  —  the  Senate,  the  House,  and  the  Governor.  The 
assent  of  each  of  these  branches  is  necessary  to  the  making 
of  a  law.  The  Senate  and  the  House  have  a  check  upon 
each  other,  and  the  Governor  has  a  check  upon  both  collec- 
tively. This  system,  in  this  respect,  the  Convention  do  not 
propose  to  change  ;  and  if  they  did,  the  bones  of  John  Adams 
would  not  lie  still  in  his  coffin. 

In  a  government,  then,  in  which  the  Legislative  Power  acts 
through  three  coordinate  branches,  the  Convention  undertake 
to  say,  that  the  fact  that  an  inhabitant  of  a  city  is  represented 
in  two  of  them  equally  with  the  inhabitant  of  a  "  rural  dis- 
trict," is  a  justification  for  depriving  him  of  an  equal  repre- 
sentation in  the  third.  The  fallacy  of  this  becomes  at  once 
apparent,  from  the  consideration  that,  in  the  enactment  of  a 
law,  if  A  is  not  represented  in  one  of  the  coordinate  branches 
of  the  Legislative  Power  upon  the  same  principles  of  equali- 
ty with  B  on  which  both  are  represented  in  the  two  other  de- 
2* 


18  UNEQUAL    REPRESENTATION. 

partments,  his  consent  to  the  enactment  of  that  law  cannot 
with  propriety  be  said  to  have  been  given,  for  in  fact  he  has 
not  had  an  equal  opportunity  to  exercise  the  power  which  the 
theory  of  the  government  pretends  to  secure  to  him,  in  all  the 
three  branches,  when  it  gives  them  coordinate  power.  And 
yet,  in  the  face  of  this  undeniable  truth,  the  majority  of  the 
Convention  put  forward  a  system  of  representation,  which 
they  admit  to  be  unequal,  and  which  they  appeal  to  sectional 
interests  and  jealousies  to  establish,  because  it  is  unequal,  and 
then  coolly  tell  us,  that  "  no  human  government  can  attain  to 
theoretic  accuracy."  If  this  system  is  adopted,  we  shall  see 
that  human  governments  can  attain  both  to  theoretic  inaccu- 
racy and  to  practical  wrong,  to  an  extent  of  which  we  have 
not  heretofore  supposed  our  republican  institutions  to  be 
capable. 

Phocion. 


No.    III. 

In  the  last  paper  on  this  subject,  I  called  your  attention  to 
the  fact,  that  the  first  proposition  on  which  you  will  be  re- 
quired to  vote  embraces  a  system  of  representation,  which,  if 
it  is  ever  adopted  by  a  majority  of  the  legal  voters  of  the 
State,  upon  the  principles  and  motives  on  which  they  are 
asked  to  adopt  it,  will  render  the  establishment  of  a  fair  and 
equal  system,  at  any  future  period,  extremely  improbable,  not 
to  say  impossible. 

I  referred  to  the  manner  in  which  the  Convention  have  post- 
poned even  the  offer  of  an  equal  system  of  representation  by 
districts,  to  a  period  when  their  unequal  system  will  have  been 
for  three  years  the  law  of  the  land,  and  when  the  same  ap- 
peals will  inevitably  be  made  to  the  same  motives,  for  retain- 
ing the  power  that  will  thus  have  been  unjustly  acquired.  I 
now  ask  you  to  examine  the  reasons  assigned  by  a  majority 
of  the  Convention  for  the  course  they  have  taken  in  the  con- 
struction of  their  first  proposition. 


UNEQUAL    REPRESENTATION.  IQ 

"  Many  of  your  delegates,"  says  the  Address,  "  are  of  opin- 
ion, that  the  State  should  be  divided  into  districts  for  the  elec- 
tion of  representatives  according  to  the  number  of  voters  in 
each.  In  this  opinion  a  large  majority  of  the  Convention  do 
not  concur  ;  but  we  think  it  our  duty  first  to  interpret  the  peo- 
pWs  will,,  and  then  to  give  a  fair  opportunity  for  its  expression 
upon  all  questions  of  importance,  whenever  such  a  course  is 
practicable.  We  have  therefore  made  a  constitutional  provis- 
ion that  the  Legislature  of  1856,  under  the  census  to  be  taken 
in  1855,  shall  present  a  district  system,  which  may  be  theii 
substituted  for,  the  one  recommended  by  the  Convention,  if,  in 
the  judgment  of  the  whole  people,  it  is  wise  to  make  the 
change."  The  inconsistency  of  first  interpreting  the  people's 
will  to  be  in  favor  of  an  extremely  unequal  system  of  repre- 
sentation by  towns  and  cities,  and  then  providing  for  the  ex- 
pression of  a  different  will,  three  years  hence,  is  obvious  and 
glaring,  when  the  two  are  presented  in  the  same  proposition. 

The  people  are  required  to  vote  upon  what  is  deceptive  ; 
for  those  who  may  desire  a  district  system,  having  no  oppor- 
tunity to  express  their  preference  except  by  a  vote  which  must 
establish  the  unequal  system  of  the  Convention,  are  placed  in 
the  position  of  being  obliged  to  vote  in  favor  of  the  latter,  or 
to  vote  against  the  former.  The  idea  of  tendering  to  them  a 
future  chance  of  getting  an  equal  system,  after  they  have  thus 
been  compelled  to  vote  in  favor  of  an  unequal  one,  or  have 
their  votes  counted  against  the  system  which  they  would  pre- 
fer, is  a  mockery.  Had  the  majority  of  the  Convention  seen 
fit,  as  in  all  fairness  they  were  bound  to  do,  to  present  the  two 
systems  as  alternatives,  in  distinct  propositions,  the  people 
would  have  had  a  present  opportunity  for  the  expression  of 
their  wishes,  that  would  have  given  justice,  principle,  and  right 
an  equal  chance  against  injustice,  want  of  principle,  and 
wrong.  As  it  is,  a  district  system,  or  any  other  just  and  fair 
plan,  may  be  considered  as  out  of  the  question,  if  there  are  a 
majority  of  voters  in  the  State  willing  to  be  influenced  in 
1853  by  the  motives,  and  willing  to  act  upon  the  principles, 
which  the  Convention  have  interpreted  as  their  will. 

But  let  us  look  a  little  farther  into  this  doctrine  of  interpret- 
ing the  people's  will  to  be  in  favor  of  the  system  devised  by 


20  UNEQUAL    REPRESENTATION. 

the  Convention.  If  the  Convention  had  any  authority  to  in- 
terpret the  will  of  the  people  beforehand,  it  must  by  all  cor- 
rect reasoning  have  been  the  will  of  the  whole  people,  or  at 
least  that  of  a  majority,  which  they  were  to  interpret.  And 
in  making  this  interpretation,  every  delegate  was  bound  to 
regard  himself  as  acting  for  the  whole  people,  and  for  their 
rights  and  interests,  and  not  for  the  rights  and  interests  of  his 
immediate  constituents  alone.  If  he  was  to  interpret  the  will 
of  the  people,  he  was  not  to  interpret  the  will  of  his  town, 
still  less  the  will  of  the  party  that  chose  him  to  be  a  delegate. 
If  he  was  to  interpret  the  will  of  the  people,  he  was  just  as 
much  bound  to  regard  and  to  collect  the  evidence  of  that  will 
in  the  cities  and  large  towns,  as  in  the  "  rural  districts  "  ;  — 
just  as  much  bound  to  consider  what  would  be  the  wishes  of 
that  half  of  the  people  who  reside  in  towns  containing  more 
than  a  given  amount  of  population,  as  to  regard  those  of  the 
other  half  of  the  people,  who  reside  in  towns  containing  less 
than  that  amount.  If,  for  the  purpose  of  framing  a  proposi- 
tion, which  was  to  have  the  eflfect  of  establishing  an  unequal 
system,  by  excluding  the  power  of  voting  directly  upon  an 
equal  one,  he  was  to  constitute  himself  the  judge  of  the  peo- 
ple's will,  and  thus  create  a  foregone  conclusion,  he  was  bound 
to  interpret  that  will  fairly,  honestly,  and  upon  the  principles 
justly  applicable  to  the  duty  before  him. 

Now  there  was  no  evidence  whatever  that  a  majority  of 
the  people  desired  a  system  of  outrageous  inequality.  To  as- 
sume that  they  did,  is  to  assume  what  no  delegate  had  a  right 
to  impute  to  them.  It  assumes  that  a  majority  of  the  people, 
from  local  and  sectional  policy,  and  from  party  motives,  are 
willing  and  determined  to  establish  a  basis  for  the  House  of 
Representatives,  on  which  one  half  of  the  population  of  the 
State  will  have  one  hundred  and  fifteen  more  members  than 
the  other  half.  So  far  as  any  presumptions  are  applicable  to 
the  subject,  they  are  all  against  the  supposition,  that  such  can 
be  the  will  of  a  majority  of  the  people.  The  presumptions 
are,  that  a  majority  of  the  people  mean  to  do  right,  and  to 
establish  and  maintain  justice;  and  he  who  acts  in -a  public 
trust  upon  any  other  presumption,  violates  the  first  principles 
of  the  trust  with  which  he  has  been  clothed. 


UNEQUAL    REPRESENTATION.  21 

Again,  even  if  the  Convention  were  authorized,  from  an- 
cient usage  and  the  habit  of  representation  by  towns  and 
cities,  to  infer  that  it  is  the  will  of  the  people  to  continue  that 
mode  of  electing  their  representatives,  there  was  no  ground 
whatever  for  them  to  assume  that  the  people  desired  to  make 
the  inequalities  of  that  system  greater  than  they  are  now.  So 
far  as  the  people  have  spoken,  they  have  expressed  a  desire 
for  a  better  basis,  not  a  worse  one,  than  that  which  now  exists. 
So  far  as  there  have  been  complaints,  they  have  been  that  the 
corporate  system  produces  inequality,  not  that  it  tends  to 
equality.  In  truth,  the  action  of  the  people,  in  directing  the 
Convention  to  assemble  for  the  purpose  of  reforming  the  basis 
of  the  House,  if  it  indicates  any  wish,  tends  to  show  that 
they  desired  some  system  which  would  relieve  and  remove  the 
inequalities  resulting  from  a  rigid  adherence  to  town  lines. 
There  is  nothing  whatever  to  show  that  the  people  intended, 
when  they  sanctioned  the  act  calling  the  Convention,  to  have 
a  system  devised,  avowedly,  for  the  purpose  of  favoring  the 
smallest  towns  in  the  Commonwealth,  and  of  giving  them, 
for  the  very  reason  that  they  contain  the  smallest  number  of 
voters,  or  the  least  amount  of  population,  the  largest  ratio  of 
political  power  assigned  to  any  communities  in  the  State.  It 
cannot  be  supposed  that  the  people  intended  to  introduce  a 
false  principle  into  their  government,  which  would  make  the 
political  power  of  one  hedf  of  them,  in  one  branch  of  the 
Legislature,  nearly  twice  as  great  as  that  of  the  other  half, 
simply  because  their  local  habitations  are  in  municipal  corpora- 
tions which  respectively  embrace  fewer  inhabitants  than  those 
in  which  the  rest  of  the  people  reside.  Still  less  is  there  any 
pretence  for  saying,  beforehand,  that  a  majority  of  the  people 
of  Massachusetts  desire  and  intend  to  introduce  into  their 
government  another  vicious  principle,  which  is  to  recognize 
the  necessity  of  giving  to  those  engaged  in  agricultural  or 
mechanical  pursuits  any  larger  share  of  power,  in  one  branch 
of  the  Legislature,  than  that  assigned  to  men  of  other  pur- 
suits. Such  a  principle  may  find  a  place  in  a  government 
which  recognizes  classes,  and  is  therefore  obliged  to  provide 
for  the  interests  of  the  classes  which  it  recognizes,  as  being  in 
some  sort  adverse  to  the  interests  of  the  rest  of  the  communi- 


22  UNEQUAL    REPRESENTATION. 

ty ;  but  it  is  wholly  out  of  place  in  a  republican  government, 
and  is  a  sheer  violation  of  the  principles  of  democracy. 

How  would  it  have  sounded  in  the  formation  of  the  Con- 
stitution of  the  United  States,  when  the  Federal  Convention 
of  1787  were  engaged  in  framing  a  system  of  representation 
for  the  whole  American  people,  if  it  had  been  claimed  that 
the  agricultural  States  ought  to  be  represented  in  a  much 
larger  proportion  to  their  actual  populations,  than  the  com- 
mercial or  manufacturing  States  ?  Such  a  claim  could  only 
have  been  founded  on  the  pretence  on  which  the  present 
claim  for  a  similar  distinction  on  a  smaller  scale  is  rested  ; 
namely,  that  the  agricultural  communities  ought  to  have  more 
legislative  power  than  the  commercial  or  manufacturing  com- 
munities, simply  because  they  are  agricultural  and  not  com- 
mercial or  manufacturing.  The  great  statesmen  who  framed 
the  Constitution  of  the  Union  were  likewise  great  republicans; 
and  they  knew  well,  that,  whatever  difference  of  pursuits  may 
lead  to  an  apparent  difference  of  interests,  as  between  one 
community  and  another,  there  is  no  method  by  which  the 
democratic  principle  can  be  introduced  into  the  legislative 
power  of  a  government,  but  by  making  every  man  equal  in 
political  power  to  every  other  man,  by  a  numerical  representa- 
tion of  the  whole.  How  absurd  then  it  is,  and  how  utterly 
subversive  of  the  democratic  principle,  to  introduce  into  a 
State,  where  neither  caste  nor  class  exists,  —  where  there  are 
less  than  a  million  of  people  of  all  occupations,  —  where  dis- 
tinctions and  privileges  are  unknown  and  ignored,  —  a  basis 
of  power  in  the  legislative  department  of  the  government, 
founded  on  the  idea  that  men  engaged  in  one  pursuit,  or  re- 
siding in  a  town  of  a  particular  size,  ought  to  have  more 
voice  in  the  enactment  of  laws  than  all  the  rest  of  the  com- 
munity !  But  it  is  unnecessary  to  enlarge  upon  this  subject; 
the  Convention  have  manifestly  put  a  false  interpretation  upon 
the  will  of  the  people,  and  have  contrived  the  means,  as  far 
as  lay  in  their  power,  for  producing  a  false  expression  of  it. 

I  desire  not  to  be  understood  —  because  in  these  remarks  a 
district  system  has  been  contrasted  with  that  proposed  by  the 
Convention  —  to  insist,  that  representation  by  districts  is  the 
only  mode  in  which  an  approach  to  something  like  equality 
can  be  made. 


UNEQUAL    REPRESENTATION.  23 

There  certainly  are  no  insuperable  difficulties  in  the  way  of 
the  adoption  of  the  district  system.  It  has  been  demonstrated, 
that  the  Commonwealth  can  be  divided  into  districts  so  nearly 
equal  in  point  of  population,  as  to  produce  an  average  repre- 
sentation, in  which  all  appreciable  inequality  would  disappear. 
But  if  the  feelings  and  wishes  of  a  majority  of  the  people  are 
in  favor  of  adhering  to  the  principles  of  corporate  representa- 
tion by  towns  and  cities,  from  the  idea  that  the  municipal  in- 
terests of  every  town  require  that  it  should  be  always  repre- 
sented by  one  of  its  own  citizens,  or  from  any  other  idea  or 
feeling,  why,  in  the  name  of  all  sense  and  reason,  should 
not  the  representation  be  so  arranged  as  to  produce  as  close 
an  approximation  to  a  true  political  equality  as  the  system  of 
town  representation  will  admit  ?  The  only  plausible  reason 
that  can  be  assigned  for  adopting  a  varying  ratio,  which  gives 
to  an  inhabitant  of  one  place  less  political  power  than  to  an 
inhabitant  of  another,  when  the  former  lives  in  a  town  con- 
taining more  inhabitants  than  the  place  where  the  latter  re- 
sides, must  be,  that  it  is  desirable  to  reduce  the  size  of  the 
House  from  what  it  would  be  under  an  exact  numerical  repre- 
sentation of  the  whole  people.  But  to  my  mind  there  are 
worse  evils  that  may  befall  the  social  and  political  condition  of 
this  Commonwealth,  than  a  large  House  of  Representatives. 
I  have  sat  in  a  House  of  at  least  six  hundred  members,  and  at 
a  time  when  parties  ran  very  high,  and  were  almost  equally 
divided.  The  assembly  was  as  intelligent,  transacted  business 
with  as  much  despatch,  and  with  as  thorough  an  understand- 
ing of  the  subjects  before  it,  as  any  House  that  has  existed 
since,  or  that  will  be  likely  to  exist  under  any  system  of  repre- 
sentation that  may  be  adopted  within  the  next  quarter  of  a 
century.  Above  all,  —  and  this  consideration  is  one  that 
should  occupy  the  first  place  in  any  scheme  for  adjusting  this 
difficult  matter, — it  was  an  honest  body!  swayed  doubtless 
at  times  by  party  appeals,  and  sometimes  influenced  by  prej- 
udice, but  in  the  main  acting  conscientiously,  and  probably 
acting  with  the  more  uprightness,  from  the  very  fact  that  it 
was  so  numerous.  But  conceding,  as  one  may  well  concede, 
that,  from  motives  of  economy,  and  having  regard  to  the  due 
accommodation  of  the  body  itself,  it  is  necessary  to  keep  the 


24  UNEQUAL    REPRESENTATION. 

number  of  the  House  within  a  certain  limit,  no  satisfactory 
reason  can  be  given  why  the  principle  to  be  adopted  should 
not  be  that  of  the  utmost  practicable  equality,  consistent  with 
the  plan  of  corporate  representation.  The  system  of  the  Con- 
vention is  directly  the  reverse  of  this. 

It  begins  with  assigning  for  the  class  of  the  smallest  towns 
so  low  an  amount  of  population,  as  the  number  requisite  for 
one  representative,  and  then  varies  the  ratio  for  every  additional 
member  so  capriciously,  as  the  towns  increase  in  size,  that  it 
arrives  at  last  at  a  point  where  nine  men  in  one  place  have 
only  the  same  political  power  with  one  man  in  another  place. 
It  is  absurd  to  pretend  that  this  is  either  necessary  or  expe- 
dient. The  necessity  of  adhering  to  town  representation  does 
not  require  it,  and  the  expediency  of  a  small  House  cannot 
justify  it.  Nothing  can  justify  the  introduction  into  a  state  of 
a  distinct,  marked,  and  decided  political  inferiority  of  one  por- 
tion of  the  people  to  another  portion,  in  point  of  political  power, 
except  the  existence  of  classes,  which  require  to  be  protected 
from  the  encroachments  of  each  other. 

Let  it  also  be  understood,  that  I  do  not  oppose  the  adoption 
of  this  Constitution,  solely  or  principally,  because  it  is  to  af- 
fect the  city  of  Boston  by  the  loss  of  a  certain  number  of 
members  in  the  House  of  Representatives.  If  it  were  the 
pleasure  of  the  people  of  the  State  to  place  this  city  under  a 
ban,  and  to  refuse  to  its  inhabitants  the  same  voice  in  mat- 
ters of  legislation  that  is  accorded  to  the  residue  of  the  people, 
I  should  regard  it  as  very  foolish  and  unjust,  but  I  should  not 
think  it  worth  while  to  oppose  a  Constitution,  Wu'c//  I  believed 
right  in  other  respects,  for  that  reason  alone.  The  city  of  Bos- 
ton might  probably  continue  to  prosper,  and  its  inhabitants  to 
be  reasonably  secure  of  obtaining  all  that  they  want  from  the 
justice  of  the  Legislature,  even  with  a  smaller  proportional 
delegation  than  that  of  other  cities  and  towns.  But  the  radi- 
cal vice  of  this  Constitution,  in  the  matter  of  representation, 
is,  that  it  affects  injuriously,  not  one  city  only,  but  all  the 
cities ;  —  not  one  town  only,  but  all  the  towns  having  the  mis- 
fortune to  possess  more  than  two  or  three  thousand  inhabit- 
ants; —  not  the  counties  only,  relatively  to  each  other,  but  the 
towns  in  one  county,  relatively  to  others  in  the  same  county. 


UNEQUAL    REPRESENTATION.  25 

For  example,  the  whole  population  of  the  State,  according  to 
the  State  census  of  1850,  was  973,715,  of  which  a  quarter 
part  is  243,428.  A  very  small  fraction  over  one  quarter  of  the 
people,  or  243,485,  reside  in  197  towns,  of  2,065  inhabitants 
or  under,  and  they  will  elect  upon  this  system  131  representa- 
tives annually,  including  the  average  of  the  64  towns  which 
elect  every  other  year.  Another  quarter,  amounting  in  all  to 
243,457,  reside  in  84  towns,  of  2,074  to  4,379  inhabitants  each, 
and  they  will  elect  130  representatives.  Thus  one  half  of  the 
people  will  elect  261  representatives.  The  third  quarter  of 
the  people,  amounting  to  245,692,  reside  in  the  28  towns  of 
the  largest  class  and  the  6  cities  of  the  smaller  class,  and  they 
will  elect  but  82  representatives.  The  fourth  quarter  of  the 
people,  inhabiting  the  6  largest  cities,  numbering  241,988,  will 
elect  64  representatives  only.  The  second  half  of  the  people, 
therefore,  will  elect  146  representatives,  while  the  first  half  will 
elect  261 ;  —  majority  in  favor  of  the  first  half  of  the  people, 
115.  In  the  first  quarter  there  will  be  one  representative  for 
every  1,868  inhabitants ;  in  the  last  quarter,  there  will  be  one 
representative  for  every  3,766  inhabitants. 

But  let  us  take  a  single  county ;  and  for  the  sake  of  com- 
paring one  agricultural  town  with  another,  and  in  order  to 
take  a  county  in  which  there  is  not  a  single  city,  let  us  select 
the  county  of  Franklin.  The  town  of  Deerfield  is  a  purely 
agricultural  town,  and  contains  a  population  of  2,421.  The 
town  of  Monroe,  also  an  agricultural  town,  has  a  population 
of  254.  Under  the  system  of  the  Convention,  every  inhabit- 
ant of  Monroe,  for  six  years  out  of  ten,  will  outweigh  every 
nine  inhabitants  of  Deerfield  ;  and  on  an  average  throughout 
the  ten  years,  every  31  inhabitants  of  Monroe  will  outweigh 
every  242  inhabitants  of  Deerfield.  Take  another  illustration, 
from  the  same  county.     The  following  six  towns  : 


Coleraine, 

1,785 ; 

Greenfield,     2,580 ; 

Conway, 

1,831 ; 

Montague,     1,518 ; 

Deerfield, 

2,421 ; 

Northfield,     1,772; 

containing  11,907  inhabitants,  will  be  entitled  to  one  represent- 
ative every  year ;  and  there  are  six  other  towns  in  the  county, 
containing  in  all  3,744  inhabitants,  which  during  six  years  out 
3 


26  UNEQUAL    REPRESENTATION. 

of  every  ten  will  be  able  to  tie  the  vote  of  the  11,907  in  the 
House  of  Representatives. 

With  reference  to  this  state  of  things,  a  Greenfield  paper 
puts  the  following  significant  question  :  — 

"  Is  it  really  true,  that  the  standard  of  honesty  and  intelligence  is 
higher  in  Erving  than  in  Deerfield  ?  or  in  Monroe  than  in  Coleraine  ? 
or  in  Leyden  than  in  Montague  ?  If  not,  then  will  any  man  tell  us 
why,  on  an  average  of  ten  years,  every  45  voters  in  Erving  should 
balance  every  258  voters  in  Greenfield,  and  why,  during  six  years  out 
of  every  ten,  one  voter  in  Erving  should  match  every  six  in  Greenfield 
or  Deerfield,  and  every  four  in  Northfield,  Conway,  or  Montague. 
There  is  but  one  reason.     It  is  not  principle.     It  is  Party." 

These  statements  are  sufficient  to  show  the  character, 
operation,  and  effect  of  the  proposed  system.  It  is  a  blow 
aimed  at  intelligence,  property,  and  numbers,  wherever  they 
are  congregated  in  masses  ;  and  they  are  to  feel  it  and  suffer 
under  it,  in  proportion  to  their  weight  in  the  social  scale. 
The  principle  adopted  is  that  of  increasing  the  political  power 
of  a  community,  by  a  rapidly  increasing  ratio,  in  proportion 
as  its  numbers  and  its  wealth  fall  below  those  of  other  com- 
munities. It  is  pretended,  but  falsely  pretended,  to  be  a  dis- 
tinction in  favor  of  rural,  agricultural,  or  mechanical  districts, 
against  commercial  and  manufacturing  populations.  It  is,  in 
fact,  a  distinction  in  favor  of  communities  lowest  in  point  of 
numbers,  intelligence,  and  property,  as  against  all  the  other 
communities,  without  any  real  reference  to  a  distinction  be- 
tween the  interests  or  employments  of  the  people.  If  the 
Commonwealth  of  Massachusetts  means  to  adopt  this  princi- 
ple of  distributing  political  power,  instead  of  the  principle  of 
the  political  equality  of  all  her  citizens,  it  will  not  be  many 
years  before  the  character  of  her  legislation  will  show  the 
effects  of  the  change. 

Phocion. 

Note.  —  The  above  calculations  concerning  the  operation  of  the  new  system  in 
the  county  of  Franklin  are  taken  from  the  Greenfield  Gazette  and  Courier.  They 
were  prepared  by  a  gentleman  in  that  county,  in  whose  accuracy  I  feel  perfect  con- 
fidence. The  other  calculations  in  this  paper  are  taken  from  those  made  by  Mr. 
Hale,  of  the  Daily  Advertiser.  I  believe  the  results  arrived  at  by  Mr.  Sargent  (of 
Cambridge)  give  a  majority  of  two  members  less  (that  is,  a  majority  of  113,  instead 


SMALL    TOWNS.  27 


No.  IV. 

If  the  reader  is  not  already  weary  of  the  subject  of  repre- 
sentation, I  propose  to  consider  it  in  another  aspect,  and  to 
examine  the  scheme  of  the  Convention  with  reference  to  an 
assertion  made  in  the  Address,  by  which  it  undertakes  to  jus- 
tify the  admitted  inequality  of  representation  embraced  in 
that  scheme. 

"  We  invite  you,"  says  the  Address,  in  a  passage  which  I  have 
quoted  before,  "  to  consider  that  the  Governor  represents  the  voters 
of  the  State  ;  that  the  Council  and  Senate  represent  population  without 
any  reference  to  voters,  and,  as  a  consequence,  that  these  two  depart- 
ments of  the  government  will  eventually  be  in  the  control  of  the  cities 
and  chief  towns ;  and  finally,  that  we  have  sought  only  to  secure  to 
the  rural  districts,  and  to  the  agricultural  and  mechanical  population 
and  interests,  a  reasonable  share  of  power  in  one  branch  of  the  Leg- 
islature. This  influence  gives  to  this  portion  of  the  people  power  to 
assent  to,  but  never  to  dictate,  the  policy  of  the  government." 

I  deny  the  assertion,  that  the  arrangements  made  in  this 
Constitution  give  to  that  portion  of  the  people,  whose  "  rea- 
sonable share  of  power  in  one  branch  of  the  Legislature  "  it 
secures,  only  the  power  to  assent  to,  but  not  to  dictate,  the 
policy  of  the  government.  I  affirm,  that  the  whole  Constitu- 
tion is  an  artfully  contrived  scheme,  for  the  purpose  of  ena- 
bling the  inhabitants  of  the  small  towns  to  dictate  and  con- 
trol the  policy  of  the  government,  and  that,  if  it  is  adopted, 
the  laws  of  Massachusetts  will  be  made  by  a  minority  of  the 
people. 

Let  me  ask  your  attention  to  the  proof  of  this  assertion. 

I  have  already  shown,  in  the  last  paper,  that  one  half  of  the 
people,  living  in  281  towns  of  4,379  inhabitants  each  and  un- 
der, will  elect,  under  this  system,  one  hundred  and  fifteen 

of  1 1 5 )  to  that  half  of  the  people  which  is  to  obtain  the  great  preponderance  of 
political  power.  The  difference  is  not  material.  The  great  question  is,  under  all 
the  calculations,  what  I  have  endeavored  to  state  in  this  paper,  viz. :  Why  intro- 
duce inequalities  not  required  by  any  necessity,  and  not  to  be  justified  by  any 
expediency  t 


28  SMALL    TOWNS. 

more  representatives  than  the  other  half  of  the  people  living 
in  the  other  towns  and  cities.  It  is  clear,  therefore,  that  a 
small  minority  of  the  people  will  elect  a  majority  of  the  rep- 
resentatives ;  and  if  the  majority  that  may  be  so  elected  by  a 
minority  of  the  people  should  be  of  the  same  political  party, 
or  of  two  parties  willing  to  coalesce,  although  it  should  be 
only  a  majority  of  five  or  ten,  it  would  control  the  action  of 
the  House.  In  judging  of  the  propriety  of  adopting  a  new 
scheme  of  government,  which  is  to  place  the  three  branches 
of  the  legislative  power  in  entirely  new  relations  with  each 
other,  in  consequence  of  the  establishment  of  different  modes 
of  electing  each  of  them,  and  a  different  rule  of  determining 
what  constitutes  an  election,  we  must  take  into  consideration 
the  fact,  that  the  people  are  divided  into  political  parties,  and 
we  must  also,  in  this  case,  remember,  that  they  are  divided 
into  three  parties,  two  of  which,  in  matters  of  legislative  ac- 
tion, have  sufficiently  evinced  their  determination  to  act  to- 
gether as  one. 

With  regard  to  the  election  of  Governor,  the  proposed  Con- 
stitution retains  the  majority  principle.  It  gives  the  Legisla- 
ture power  to  change  that  rule  to  a  plurality.  But,  with  a 
majority  of  representatives  elected  by  the  two  coalition  par- 
ties, that  change,  as  long  as  the  three  parties  retain  their  present 
popular  relations  to  each  other,  will  never  be  made.  The 
chances  are,  in  the  present  state  of  things,  against  an  election 
of  Governor  by  a  majority  of  the  people.  Whenever  the 
election  devolves  on  the  Legislature,  the  House  of  Represent- 
atives, according  to  the  proposed  Constitution,  are  to  select 
two  out  of  the  three  persons  having  the  highest  number  of 
votes,  and  return  them  to  the  Senate,  from  whom  the  Senate 
is  to  choose  one  to  be  the  Governor.  The  majority  of  repre- 
sentatives, elected  by  a  minority  of  the  people,  of  course  will 
determine  the  two  candidates  to  be  sent  to  the  Senate,  and 
they  will,  also  of  course,  not  send  the  one  politically  opposed 
to  them.  Thus  "the  reasonable  share  of  power"  secured  to 
a  majority  of  the  people  in  the  House  of  Representatives  will, 
in  the  most  direct  manner,  be  exercised  to  determine  the  polit- 
ical character  of  the  Governor ;  and,  therefore,  two  branches 
of  the  legislative  power  will  rest  upon  the  votes  of  a  minority 
of  the  people. 


JUDICIARY.  29 

It  is  true  that  this  result  depends  upon  the  contingency  of 
the  majority  of  representatives,  who  will  be  elected  by  a  mi- 
nority of  the  people,  being  of  the  same  political  party,  or  of 
two  parties  having  a  common  object  to  accomplish  in  the 
choice  of  a  Governor ;  but  this  contingency,  in  case  of  the 
adoption  of  this  Constitution,  is  not  only  possible,  but  ex- 
tremely probable.  If,  by  a  constitutional  arrangement,  it  is 
in  the  power  of  a  minority  of  the  people,  dwelling  in  a  cer- 
tain class  of  small  towns,  thus  to  acquire  the  control  of  two 
branches  of  the  legislative  department  of  the  government, 
the  existence  of  the  power  will  have  a  very  strong  tendency 
to  bring  about  the  result,  and  to  cause  the  inhabitants  of  those 
towns  to  adhere  in  general  to  that  political  party  which  is  to 
gain  such  an  enormous  advantage.  But,  even  if  this  result 
were  only  possible,  and  not  probable,  its  possibility  is  a  suffi- 
cient refutation  of  the  pretence  set  up  in  the  Address  of  the 
Convention,  and  a  sufficient  objection  to  their  scheme.  Con- 
stitutions are  made,  or  should  be  made,  with  a  view  of 
preventing  a  minority  of  the  people  from  obtaining  the  con- 
trol of  the  legislative  department,  and  not  with  a  view  of  per- 
mitting, still  less  of  encouraging,  such  a  result. 

You  should  also  take  along  with  you,  in  judging  of  this 
part  of  the  scheme,  the  fact  that,  by  this  proposed  Constitu- 
tion, the  appointing  power  of  the  Governor  is  to  be  greatly 
increased,  in  reference  to  another  distinct  department  of  the 
government.  Although  the  Convention  propose  to  take  from 
the  Governor  the  power  of  appointing  some  of  the  executive 
and  administrative  officers  of  the  government,  they  retain  to 
him  the  power  of  appointing  the  Judges  of  the  Supreme 
Court  and  the  Court  of  Common  Pleas,  who  are  to  be  com- 
missioned, when  appointed,  for  ten  years  only,  instead  of 
during  good  behavior.  If,  therefore,  a  majority  of  the  present 
Judges  of  either  Court  should  die  in  any  one  year,  the  Governor 
would  have,  for  ever  after,  the  appointment  of  a  majority  of  that 
bench  once  in  every  ten  years ;  while  the  Governor  himself,  by 
whom  those  appointments  would  be  made,  might  owe  his  elec- 
tion to  a  minority  of  this  people.  Thus  the  proposed  Constitu- 
tion, so  far  from  giving  this  minority  only  the  power  to  assent 
to,  but  never  to  dictate,  the  policy  of  the  government,  places 
3* 


30  SENATE. 

two  branches  of  the  legislative  department,  together  with  the 
judiciary^  within  their  control,  in  any  year  when  the  election 
of  Governor  is  thrown  into  the  Legislature,  and  there  are  va- 
cancies on  the  bench  of  either  of  the  Courts. 

Let  us  now  turn  to  the  other  branch  of  the  legislative  de- 
partment, and  see  how  it  will  be  with  regard  to  the  Senate. 
It  is  quite  true  that  a  majority  of  all  the  people  of  the  State 
may  elect  a  majority  of  Senators,  and  that  the  cities  and 
towns,  which  contain  respectively  more  than  a  certain  number 
of  inhabitants,  will  be  found  to  contain  a  majority  of  the 
people  of  the  State.  But  deserting,  in  this  instance,  the  ma- 
jority principle,  the  Convention  have  provided  that,  for  the 
choice  of  Senators,  the  State  shall  be  divided  into  forty  dis- 
tricts, containing  an  equal  amount  of  population,  and  each 
entitled  to  elect  one  Senator,  and  that  the  person  having  the 
highest  number  of  votes  is  to  be  declared  elected.  Under 
this  system,  it  is  possible  for  twenty-one  Senators  to  be 
elected,  who  will  be  of  the  same  political  party  or  parties 
with  the  majority  of  the  House,  and  who  will  only  theoreti- 
cally represent  a  majority  of  the  people  in  their  districts.  In 
this  case,  therefore,  the  political  party  or  parties,  who  had  ob- 
tained, through  the  votes  of  a  minority  of  the  people,  the 
control  of  the  House,  and  the  power  of  determining  the  polit- 
ical character  of  the  Governor,  would  also  possess  the  Senate. 
It  is  clear,  therefore,  that  under  this  Constitution,  in  contin- 
gencies which  are  both  possible  and  extremely  probable,  the 
laws  of  Massachusetts  will  in  fact  be  made  and  administered  by 
a  minority  of  the  people. 

Let  me  ask  you,  then,  to  judge  of  this  Constitution  in  its 
influence  on  the  general  character  of  the  legislation  of  the 
State.  I  need  not  say  to  you,  that  laws  made  by  a  minority 
of  the  people,  through  an  artificial  arrangement  of  the  legis- 
lative power,  belong  to  aristocratic  governments,  in  which  the 
power  of  governing  is  lodged  in  certain  classes ;  and  that  in 
a  republic,  laws,  which  are  habitually  known  to  emanate  from 
the  will  of  a  minority,  cannot  be  respected  or  acquiesced  in. 
When  the  laws  rest  upon  such  a  basis,  among  a  people  who 
have  been  accustomed  to  live  and  act  under  the  doctrine  that 
law  is  the  will  of  society,  expressed  through  the  voice  of  a 


MINORITY    TO    GOVERN.  31 

majority,  there  must  be  a  growing  disregard  for  the  authority 
of  all  law.  A  people  who  cannot  appeal  to  the  highest  sanc- 
tions of  law,  in  the  general  will,  must  either  surrender  the 
name  of  republicans,  and  consent  to  be  governed  by  an  oli- 
garchy, or  they  must  become  restive  and  unwilling  subjects 
of  a  rule,  that  reposes  on  no  foundation  of  justice  and  right. 

Let  me  also  ask  you  to  look  at  the  particular  influences  of 
this  Constitution  on  the  legislation  of  the  State. 

In  the  first  place,  look  at  it  in  its  influence  on  the  relations 
of  particular  sections  of  the  State  to  each  other.  An  attempt 
is  now  made  to  introduce  a  discrimination,  founded  on  the 
idea  of  antagonistic  interests,  as  between  city  and  country, 
rural  and  commercial  populations,  and  places  of  different 
magnitudes.  This  idea  is  to  be  engrafted  into  the  Constitution 
of  the  State,  as  a  basis  on  which  political  power  is  to  be  distrib- 
uted. The  great  ideas  embodied  in  the  fundamental  law  of 
a  people  necessarily  affect  and  influence  their  legislation.  It 
is  so  in  all  governments,  and  ours  can  be  no  exception  to  the 
operation  of  a  principle  which  is  founded  in  human  nature, 
and  is  universally  operative.  This  idea  of  a  discrimination 
in  favor  of  rural  or  mechanical  populations,  or  populations  of 
a  certain  size,  will  be  followed  out  in  legislation  ;  and,  as  we 
are  to  have  a  Constitution  made  for  rural  districts  and  small 
towns,  and  people  of  certain  occupations,  so  we  shall  have 
laws  made  for  the  same  purpose,  in  the  same  spirit,  and  to 
carry  out  the  same  idea.  This  has  never  happened  before, 
among  us,  because  no  former  system  of  representation  was 
ever  based  upon  the  idea  of  such  a  discrimination.  It  will 
happen  hereafter,  should  this  Constitution  be  adopted,  because 
the  discrimination  will  have  been  expressly  made  the  basis 
for  assigning  a  preponderance  of  political  power  to  certain 
classes  of  men  or  classes  of  towns. 

In  the  second  place,  look  at  the  influence  of  this  Constitu- 
tion on  the  legislation  of  the  State  in  reference  to  the  internal 
affairs  of  particular  places.  The  cities  of  this  Common- 
wealth are  bodies  politic,  to  which  a  certain  portion  of  the 
legislative  power  of  the  State  has  been  granted  by  charter  for 
the  local  purposes  of  a  population,  whose  wants  require,  in 
some  respects,  different  provisions  of  law  from  those  of  less 


32  MINORITY    TO    GOVERN. 

populous  places.  But  the  special  powers  of  these  local  legis- 
lative bodies  are  not  large.  The  powers  of  our  municipal 
corporations,  as  compared  with  those  of  other  cities  in  the  Old 
World,  and  with  those  of  some  cities  in  other  States  of  this 
Union,  are  small,  and  relate  to  but  few  objects.  They  have 
been  kept  so,  because  the  character  of  the  central  government 
of  the  State  has  been  beneficent,  and  almost  paternal ;  be- 
cause all  men  have  had  ready  access  to  the  general  legisla- 
ture ;  and  because,  whenever  the  particular  convenience  of 
individuals,  or  the  wants  of  a  particular  population,  have  re- 
quired special  legislation,  it  has  been  readily  and  liberally 
afforded.  The  charters  of  the  cities  have  thus,  when  first 
granted,  been  kept  within  narrow  limits.  Their  legislative 
power  has  been  increased  only  from  time  to  time,  as  necessity 
required,  and  has  never  been  extended  to  those  objects  which 
appropriately  belong  to  the  cognizance  of  the  general  leg- 
islature. But  adopt  a  Constitution,  which  is  to  have  the 
effect  of  making  the  inhabitants  of  these  cities  feel  that  they 
are  not  duly  and  rightfully  represented  in  the  government  of 
the  State,  that  their  objects  and  their  wants  cannot  command 
the  same  attention,  and  cannot  secure  the  same  relief,  that 
they  have  hitherto  had,  and  you  will  create  a  very  strong  ten- 
dency to  lean  upon  and  resort  to  the  local  legislative  powers 
now  vested  in  their  municipal  bodies,  whose  authority  will  be 
strained,  by  forced  constructions,  to  provide  for  objects  which 
have  not  heretofore  been  deemed  within  their  cognizance. 
The  consequence  will  be  a  great  amount  of  litigation,  and, 
finally,  conflict  with  the  central  government  of  the  State. 

These  considerations  may  serve  as  hints,  to  which  your  wis- 
dom and  judgment  will  enable  you  to  give  far  more  effect 
than  I  can  give  in  the  short  space  devoted  to  this  discussion. 
But  the  great  consideration,  after  all,  is  that  on  which  I  have 
again  and  again  insisted  ;  namely,  that  this  Constitution  gives 
to  a  small  minority  of  the  people  power  to  control  and  determine 
the  character  and  policy  of  the  government.  Those  who  tell  you 
that  it  only  secures  to  certain  interests  a  share  of  power,  made 
necessarily  larger  than  that  accorded  to  other  interests  in  the 
same  branch,  in  order  to  balance  and  compensate  for  irregu- 
larities produced  elsewhere,  are  only  attempting  to  mislead 


JUDICIARY. 


^ 


you  for  their  own  political  purposes.  I  have  spoken  of  the 
operation  of  this  Constitution  with  reference  to  the  power 
which  it  gives  to  certain  political  parties,  and  have  referred  in 
this  to  the  two  parties  known  as  the  "  Coalition."  The  argu- 
ment, if  the  other  party  should  possess  a  majority  of  repre- 
sentatives elected  by  a  minority  of  the  people,  would  be  pre- 
cisely as  strong,  and  I  trust  I  should  be  capable  of  presenting 
it  in  the  same  light.  No  constitution  is  fit  for  a  free  people 
to  live  under,  which  enables  a  small  minority  of  the  people  to 
determine  the  political  character  of  the  Legislature,  and  to 
control  the  Judiciary,  whether  one  party  or  another  gains  the 
ascendency  by  means  of  it.  That  constitution  alone  is  fit 
for  a  free  people  to  live  under,  which  puts  the  policy  and 
course  of  the  government  into  the  hands  of  a  majority  of  the 
people,  or,  when  that  is  not  always  and  constantly  practicable, 
comes  as  near  to  it  as  the  circumstances  and  situation  of  the 
people  will  admit.  It  may  be,  that  the  state  of  political  par- 
ties in  this  Commonwealth  may  render  it  impossible  to  carry 
on  the  government  upon  the  principle  of  requiring  a  majority 
of  votes  for  the  election  of  all  officers.  If  so,  —  and  if  we 
have  reached  a  point  when  a  change  must  be  made  in  this 
respect,  —  in  the  name  of  all  that  is  decent  and  honest,  let  it 
be  a  change  to  a  system  that  will  have  some  consistency  of 
principle  in  its  application  to  the  various  branches  of  the  gov- 
ernment. Let  it  not  be  a  rule  applied  to  one  branch,  because 
it  will  work  a  political  advantage  to  a  party,  or  to  a  set  of 
men  hankering  for  the  offices  of  the  Commonwealth,  and 
suppressed  in  another  branch,  because  it  would  operate  in- 
juriously to  their  plans.  Let  it  be  adopted  as  a  principle, 
and  because  it  is  a  principle,  which  will  alone  produce  the 
nearest  approximation  to  a  strict  government  of  the  majority, 
by  operating  alike  in  all  the  elections  in  which  the  people  are 
required  to  express  their  will. 

Phocion. 


34  JUDICIARY. 

No.   V. 

THE   JUDICIARY. 

Important  as  the  question  of  representation  is,  there  is 
another  question,  of  at  least  equal  importance,  involved  in  the 
Constitution  which  you  are  asked  to  adopt,  in  the  place  of 
that  under  which  you  and  your  fathers  have  lived  happily  and 
prosperously  for  a  period  of  more  than  seventy  years.  I  al- 
lude, of  course,  to  the  change  which  you  are  asked  to  make  in 
the  tenure  of  the  Judiciary. 

Our  ancestors  considered,  that  the  due  independence  of  the 
judges  required  that  they  should  hold  their  offices  during  good 
behavior ;  and  they  believed  that  the  independence  of  the 
judges  is  an  essential  security  to  the  rights  of  every  citizen  or 
subject  of  the  Commonwealth.  It  is  impossible  to  express 
the  great  reasons  which  connect  these  two  propositions,  in 
the  inseparable  bands  of  truth,  more  forcibly  than  they  are 
stated  in  that  solemn  and  impressive  declaration  of  the  twenty- 
ninth  article  of  the  Bill  of  Rights  :  — 

"  It  is  essential  to  the  preservation  of  the  rights  of  every  individual, 
his  life,  liberty,  property,  and  character,  that  there  be  an  impartial  in- 
terpretation of  the  laws,  and  administration  of  justice.  It  is  the  right 
of  every  citizen  to  be  tried  by  judges  as  free,  impartial,  and  indepen- 
dent, as  the  lot  of  humanity  will  admit.  It  is,  therefore,  not  only  the 
best  policy,  but  for  the  security  of  the  rights  of  the  people,  and  of 
every  citizen,  that  the  judges  of  the  Supreme  Judicial  Court  should 
hold  their  offices  as  long  as  they  behave  themselves  well,  and  that 
they  should  have  honorable  salaries,  ascertained  and  established  by 
standing  laws." 

No  essayist,  no  WTiter  on  government,  no  publicist  what- 
ever, has  succeeded  in  stating  these  great  truths  with  more 
logical  precision  than  they  are  stated  in  these  memorable  sen- 
tences. The  premises  are  necessary  to  the  conclusion,  and 
the  conclusion  follows  irresistibly  from  the  premises.  Change 
the  one  or  the  other,  and  the  doctrine  loses  all  its  consistency 
and  all  its  truth.     If  the  right  of  every  citizen  requires  that 


JUDICIARY.  35 

the  judges  should  be  as  free,  impartial,  and  independent  as 
the  lot  of  humanity  will  admit,  then  a  degree  of  freedom,  im- 
partiality, and  independence  less  than  that  to  which  the  lot  of 
humanity  can  be  made  to  attain,  is  neither  the  best  policy, 
nor  a  true  security  of  the  rights  of  the  citizen.  That  a  tenure 
of  the  judicial  office  during  good  behavior,  and  upon  estab- 
lished salaries,  is  the  highest  state  of  freedom,  impartiality, 
and  independence  which  the  lot  of,  humanity  will  admit,  no 
man  in  his  senses  can  deny  ;  and  if  it  is,  any  other  tenure  is 
manifestly  inconsistent  with  the  rights  of  the  citizen,  which 
the  declaration  establishes.  The  majority  of  the  late  Con- 
vention have  provided  for  another  tenure  for  the  judges  here- 
after to  be  appointed,  namely,  that  they  shall  hold  their  offi- 
ces for  ten  years  only ;  and  you  will  not  fail  to  observe,  apart 
from  the  question  of  policy  involved  in  this  change,  the  ab- 
surdity to  which  they  have  reduced  the  declaration  of  the  Bill 
of  Rights.  That  declaration,  in  this  new  Constitution  now 
proffered  to  you,  they  have  made  to  read  as  follows :  — 

"  It  is  essential  to  the  preservation  of  the  rights  of  every  individual, 
his  life,  liberty,  property,  and  character,  that  there  be  an  impartial  in- 
terpretation of  the  laws  and  administration  of  justice.  It  is  the  right 
of  every  citizen  to  be  tried  by  judges  as  free,  impartial,  and  indepen- 
dent as  the  lot  of  humanity  will  admit.  It  is,  therefore,  not  only  the 
best  policy,  but  for  the  security  of  the  rights  of  the  people,  and  of 
every  citizen,  that  the  judges  of  the  Supreme  Judicial  Court  should 
hold  their  offices  ly  tenures  established  by  the  Constitution,  and  should 
have  honorable  salaries,  which  should  not  be  diminished  during  their 
continuance  in  office.'''' 

They  propose,  therefore,  that  the  Bill  of  Rights  of  this 
Commonwealth  shall  assert  it  to  be  the  right  of  every  citizen 
to  be  tried  by  judges  as  free,  impartial,  and  independent  as 
the  lot  of  humanity  will  admit.  But,  as  if  their  conclusion 
had  nothing  to  do  with  this  great  premise,  they  declare,  that 
it  is  the  best  policy,  and  for  the  security  of  the  rights  of  the 
people,  that  the  judges  should  hold  their  offices  by  tenures 
established  by  the  Constitution,  and  then  go  on  to  provide 
that  they  shall  hold  them  for  ten  years  only.  If  this  conclu- 
sion is  true,  the  premises  are  untrue ;  if  the  premises  are  true, 


36  JUDICIARY. 

the  conclusion  is  false.  If  a  tenure  for  ten  years  is  the  best 
policy,  and  best  secures  the  rights  of  the  citizen,  then  the  rights 
of  the  citizen  do  not  require  the  highest  independence  which 
the  lot  of  humanity  will  admit. 

The  framers  of  this  new  Constitution  seem  to  have  forgot- 
ten, or  not  to  have  known,  what  the  Bill  of  Rights  of  this 
Commonwealth  is.  It  is  a  declaration  of  the  rights  inherent 
and  inalienable  in  every  citizen  and  subject  of  the  Common- 
wealth, intended  to  impose  limits  on  the  people  themselves, 
and  to  declare  the  principles  on  which  the  provisions  of  the 
Constitution  are  to  be  established.  When,  therefore,  the  Bill 
of  Rights  declares,  that  it  is  the  right  of  every  citizen  to  be 
tried  by  judges  as  free,  impartial,  and  independent  as  the  lot 
of  humanity  will  admit,  it  is  a  self-evident  absurdity  for  the 
Constitution  to  establish  a  tenure  of  the  judicial  office  which 
is  not  as  free,  impartial,  and  independent  as  the  lot  of  human- 
ity will  admit.  And  when  the  Bill  of  Rights  further  declares 
what  the  security  of  every  citizen  requires  the  tenure  of  the 
office  to  be,  it  must,  in  order  to  be  consistent  with  the  previous 
declaration,  be  a  tenure  during  good  behavior.  Unless  the 
Bill  of  Rights  itself  provides  and  declares  what  the  tenure  of 
the  judicial  office  shall  be,  and  thereby,  for  the  transcendent 
reason  of  securing  the  rights  of  every  individual,  limits  the 
power  of  the  people  to  enact  a  different  tenure  in  the  Consti- 
tution, the  whole  article  is  entirely  out  of  place.  To  declare 
what  the  right  of  the  citizen  requires  in  the  Bill  of  Rights,  and 
then  to  go  on  and  enact  in  the  Constitution  a  plain  incon- 
sistency with  that  declaration,  is  doing  what  no  set  of  law- 
givers in  this  Commonwealth  ever  did  before. 

But  bad  as  this  botching  of  the  great  charter  of  our  liberties  is, 
I  will  not  detain  you  with  mere  criticisms  on  the  work  of  the 
Convention.  The  change  itself  which  they  propose,  and  the 
reasons  which  they  have  offered  for  it,  await  your  examina- 
tion. In  the  first  place,  then,  it  will  not  fail  to  strike  you, 
that,  by  not  altering  the  tenure  of  the  present  judges,  the 
Convention  have  admitted,  that  there  is  no  present  reason  for 
a  change.  Will  any  one  venture  to  say,  that  the  past  affords 
any  reason  ?  I  have  looked  in  vain  into  the  Address,  for  a 
direct  statement,  that  there  has  been  any  thing  in  the  history 


JUDICIARY.  37 

of  the  Judiciary  of  Massachusetts  to  require  or  justify  this 
change.  The  writers  of  that  document  state,  indeed,  that  "  in 
a  free  government  the  people  should  be  relieved  in  a  reasona- 
ble time,  and  by  the  ordinary  course  of  affairs,  from  the  weight 
of  incompetent  or  unfaithful  public  servants.  Under  the 
present  Constitution,  a  judge  can  only  be  removed  by  the 
difficult  and  unpleasant  process  of  impeachment,  or  of  address. 
Such  remedies  will  be  resorted  to  only  in  the  most  aggravated 
cases."  But  do  they  venture  to  assert,  that  the  people  of  this 
Commonwealth  have  ever  been  oppressed  by  the  weight  of 
incompetent  or  unfaithful  judges?  Or  that  there  has  ever 
been  a  case,  less  than  the  most  aggravated,  in  which  impeach- 
ment or  address  has  not  been  resorted  to,  but  in  which  a  re- 
moval would  have  been  desirable,  or  has  ever  been  desired  ? 
Or  do  they  mean  that  this  statement  of  the  reason  for  the 
future  provision  which  they  make  shall  be  taken  by  the  peo- 
ple as  an  insinuation,  that  there  have  been,  in  the  past,  incom- 
petent and  unfaithful  judges,  who  have  been  left  upon  the 
bench,  because  impeachment  and  address  are  difficult  and 
unpleasant  processes?  If  such  is  their  insinuation,  the  whole 
people  of  the  Commonwealth,  who  are  neither  demagogues 
nor  believers  in  demagogues,  will  rise  up  to  repel  it,  alike  from 
those  who  have  received  their  appointments  from  one  Execu- 
tive, and  from  those  who  have  received  them  from  another. 
If  such  is  the  insinuation  of  the  Address,  there  never  was  a 
more  false  and  injurious  imputation  cast  upon  any  set  of 
magistrates,  since  judicature  has  been  known  among  men. 
The  Judiciary  of  Massachusetts,  from  the  day  on  which  she 
became  an  independent  State  to  the  present  hour,  has  been 
as  able,  as  upright,  as  much  respected,  and  as  respectable,  as 
any  judiciary  in  any  part  of  the  civilized  world ;  and  the  case 
has  rarely,  if  ever,  been  known  among  them,  of  a  judge  re- 
maining upon  the  bench  after  he  had  ceased  to  be  competent, 
or  had  become  unfaithful.  It  may  be  doubted,  whether  such 
a  case  is  within  the  memory  of  any  man  now  living.  But 
whether  such  an  insinuation  was  intended  to  be  covertly  made, 
or  not,  it  is  manifest,  that  the  Convention,  by  not  applying 
the  change  to  the  present  Judges,  did  not  dare  to  make  it 
openly,  and  did  not  venture  to  assert  that  experience  requires 
4 


38 


JUDICIARY. 


the  change.  The  sole  reason  why  they  did  not  apply  to  the 
present  Judges  a  change  which  they  say  is  necessary  in  the 
future,  was  because  they  were  afraid  to  encounter  the  odium 
of  a  fair,  practical  application  of  their  own  measure,  and 
thought  to  get  it  in  edgewise. 

But  let  us  now  examine  the  doctrine  of  the  Convention, 
that  it  is  expedient,  that  the  judges  should  hold  their  offices 
for  ten  years  only.  It  cannot  be  pretended,  that  a  judge  who 
sits  upon  the  bench,  and  passes  upon  questions  affecting  the 
life,  liberty,  property,  and  character  of  his  fellow-citizens,  is  in 
a  state  which  can  be  correctly  described  as  independent,  if,  at 
the  expiration  of  ten  years,  he  is  to  look  for  a  reappointment 
to  the  Governor,  who,  besides  being  the  Executive  of  the 
Commonwealth,  is  always  the  head  of  a  political  party.  The 
Convention,  therefore,  are  in  favor  of  a  dependent,  and  not  an 
independent  judiciary. 

Now,  in  opposition  to  their  theory,  I  undertake  to  affirm,  that 
the  true  democratic  doctrine  —  that  which  looks  to  the  safety 
and  securityof  the  rights  of  the  humblest  individual,  and  provides 
for  them  in  an  impartial  administration  of  the  laws  —  is  "an 
independent  judiciary."  In  the  first  place,  all  men  will  agree, 
who  are  not  blinded  by  party  prejudice,  that,  unless  the  judiciary 
is  independent,  the  judicial  office  will  not  in  general  be  sought 
or  accepted  by  men  of  the  highest  ability,  combined  with  the 
highest  character.  Men  of  real  talent  can  do  better  than  ac- 
cept a  place  which  they  can  hold  for  the  short  period  of  ten 
years  only,  and  men  of  real  character  will  not  place  themselves 
in  a  position  of  dependence  upon  the  chances  and  changes  of 
political  parties.  The  judicial  office  should  be  made  so  de- 
sirable as  to  command  the  services  of  those  most  fitted  to  dis- 
charge its  duties ;  and,  among  the  qualifications  for  the  dis- 
charge of  those  duties,  character  and  talent  are  two  great 
essentials.  There  are  many  and  obvious  reasons,  why  the 
most  eminent  members  of  the  legal  profession  should  be  at- 
tracted to  the  Bench,  as  a  matter  of  public  policy.  One  reason 
is,  that  the  Bench  ought  always  to  maintain  a  supremacy  over, 
and  a  superiority  to,  the  Bar.  I  believe  that  all  thinking  men, 
who  have  much  considered  this  subject,  will  agree  in  regarding 
this  as  essentiaL  If  the  Bar  predominate  over  the  Bench  in  learn- 


JUDICIARY.  39 

ing,  quickness  of  apprehension,  clearness  and  soundness  of 
judgment,  and  force  of  character,  justice  cannot  be  well  ad- 
ministered. The  tendency  among  us,  apart  from  the  influence 
which  our  constitutional  provisions  have  hitherto  exerted,  is 
to  predominance  by  the  Bar,  from  numbers,  from  social  posi- 
tion, and  from  influence  in  other  branches  of  the  government. 
The  people  need  to  be  protected  from  this  tendency  ;  and  this 
protection  is  to  be  found  in  such  a  tenure  of  the  judicial  office, 
as  will  induce  men  to  accept  it,  who  are  individually  superior 
in  point  of  ability,  learning,  and  weight  of  character,  to  most 
of  the  advocates  who  practise  before  them. 

In  presenting  to  you  this  consideration,  I  am  not  unmindful 
that  the  Bar  of  Massachusetts  are,  in  general,  deserving  of 
great  credit  for  the  aid  which  they  have  always  given  to  the 
Court  in  the  administration  of  the  law.  As  a  body  of  men, 
whose  profession  and  duty  it  is  to  advocate  the  rights  of  oth- 
ers, I  believe  the  Bar  of  this  Commonwealth  have  generally 
aimed  to  discharge  their  duties  according  to  their  official  oaths, 
with  all  due  fidelity  to  the  Court,  as  well  as  to  their  clients  ; 
and  I  should  be  the  last  person  in  the  world,  to  be  willing  to 
depreciate  the  services  which  they  have  rendered,  and  are  daily 
rendering,  in  the  administration  of  justice.  Withgut  a  learn- 
ed, zealous,  and  able  Bar,  no  Court  can  discharge  its  duties 
satisfactorily  to  itself,  and  to  the  true  advantage  of  the  public. 
But  it  should  never  be  forgotten  in  considering  this  great  sub- 
ject of  the  relations  of  the  Court  to  the  Bar,  that  it  is  the  office 
of  an  advocate  to  present  one  side  and  one  view  of  a  subject, 
and  to  enforce  that  side  with  all  the  talent,  learning,  zeal,  and 
address  that  he  can  employ  in  the  service  of  his  client.  This 
is  the  only  mode  in  which  the  conflicting  rights  and  interests 
of  men  can  be  judicially  investigated,  and  the  truth,  whether 
of  law  or  fact,  be  finally  elicited  in  the  process.  It  is,  there- 
fore, obvious,  that  the  office  of  judgment,  which  is  to  extract 
from  the  animated  and  highly  colored  discussions  of  the  Bar 
the  elements  of  a  wise,  true,  and  just  decision,  ought  to  be  dis- 
charged by  a  mind  equal  at  least,  if  not  superior,  in  power  of 
research,  in  grasp  and  force  of  intellect,  and  in  all  the  habits 
of  a  trained  analysis,  to  those  whose  business  it  is  to  present 
a  single  view  of  the  subject.     Have  you  ever  seen  a  feeble 


40  JUDICIARY. 

judge,  sitting  in  the  trial  of  a  cause  conducted  by  really  great 
and  superior  men  at  the  Bar?  If  you  have,  you  have,  to 
some  extent,  witnessed  the  effect  and  the  consequences  of  that 
inferiority,  which  I  am  now  contending  ought  not  to  be  found 
upon  the  bench.  And  if  to  an  intellectual  inferiority  you  add 
an  inferiority  in  point  of  character;  if,  besides,  you  place  the 
judge  upon  the  bench  in  a  position  where  he  must  not  only 
succumb  to  the  superior  strength  of  the  advocates  before  him, 
but  must  find  in  some  of  those  advocates  men  of  political 
power  and  influence,  and  must  be  constantly  reminded,  by 
their  presence,  of  the  political  bearing  of  the  questions  before 
him,  and  be  constantly  alive  to  the  effect  on  his  own  position 
and  prospects  of  the  decision  which  he  is  to  pronounce, — 
you  will  be  able  to  form  some  idea  of  the  kind  of  judiciary 
you  will  be  likely  to  have,  when  your  judges  are  commissioned 
for  ten  years,  and  are  to  look  for  a  renewal  of  their  commis- 
sions to  the  success  of  a  political  party. 

But  the  subject  is  too  important,  and  too  full  of  interest,  to 
be  disposed  of  in  a  single  essay.  I  shall  resume  it  in  a  future 
paper. 

Phocion. 


No.   VI. 

THE  JUDICIARY. 


In  the  last  paper,  I  called  your  attention  to  some  consider- 
ations, which  show  that  the  judicial  office  ought  to  be  made 
so  desirable  as  to  command  the  services  of  the  ablest  and  best 
members  of  the  legal  profession  ;  and  that  it  is  not  made  so, 
when  the  judges  are  commissioned  for  the  short  period  of  ten 
years,  and  are  obliged  to  look  for  a  renewal  of  their  commis- 
sions to  the  success  of  a  political  party.  Those  considera- 
tions referred  to  the  internal  relations  of  the  State  to  its  own 
citizens,  in  the  impartial,  pure,  wise,  and  able  administration 
of  justice.  I  now  ask  you  to  look  at  this  subject  in  its  con- 
nection with  the  relation  of  the  State  to  the  Union. 


JUDICIARY.  41 

The  late  Convention  seem  to  have  done  every  thing  that 
was  in  their  power,  to  reduce  the  offices  of  the  State,  and 
especially  the  judicial  offices,  below  the  ambition  of  men  of 
high  ability  and  character,  and  to  make  them  desirable  only 
to  a  class  of  men,  who  cannot  bring  to  the  service  of  the 
Commonwealth  the  same  degree  of  talent  and  capacity,  which 
the  government  of  the  United  States  is  able  to  command. 
How  miserable  and  short-sighted  a  policy  this  is,  which  has  a 
tendency  to  drive  the  best  men  out  of  the  service  of  a  State 
into  the  service  of  the  United  States,  we  have  lately  seen  ex- 
emplified in  the  State  of  Ohio,  —  the  third  State  in  the  Union 
in  point  of  population,  —  whose  Governor  has  just  resigned 
his  office,  in  order  to  take  a  consulship  abroad.  Such  a  pol- 
icy is  suicidal  to  the  best  interests  of  a  State,  to  its  proper 
influence  in  the  Union,  and  to  the  duties  which  it  owes  to  the 
complex  relations  of  this  confederacy.  It  is  in  the  highest 
degree  important  to  the  security  of  the  Union,  that  the  just 
powers  and  full  influence  of  the  several  States,  in  their  re- 
spective spheres,  should  be  maintained.  The  tendency  is, 
and  almost  always  has  been,  since  the  adoption  of  the  Con- 
stitution of  the  United  States,  to  a  preponderance  of  the 
power  and  influence  of  the  general  government  over  those  of 
the  States,  without  the  exercise  of  any  thing  more  than  its 
proper  constitutional  functions. 

From  the  growth  of  the  country,  from  the  increased  mag- 
nitude of  the  objects  with  which  the  general  government  is 
concerned,  and  from  the  consequently  increasing  patronage 
that  belongs  to  it,  the  legitimate  constitutional  power  and 
influence  of  the  United  States  increase  much  more  rapidly 
than  those  of  the  States.  Our  political  system  is  so  consti- 
tuted, that,  unless  the  States  are  careful  to  preserve  their  legit- 
imate influence,  and  to  counteract  this  tendency  of  the  gen- 
eral government  to  outstrip  them  in  energy  and  force,  the  bal- 
ance of  the  Union  must  be  seriously  deranged.  At  the  time 
when  the  Constitution  of  the  United  States  was  formed,  it 
was  not  only  admitted  that  the  State  governments  must  be 
preserved,  but  it  was  perceived  to  be  necessary,  in  order  that 
they  should  be  preserved,  that  they  should  retain  and  continue 
to  exercise  all  the  powers  which  were  not  necessary  to  be 
4* 


42  JUDICIARY. 

granted  to  the  general  government  for  the  accomplishment  of 
the  objects  for  which  it  was  to  be  instituted.  The  powers 
and  functions  of  the  States,  as  they  were  actually  left  after 
the  adoption  of  the  Federal  Constitution,  if  suffered  to  fall 
into  decay,  or  if  not  exercised  with  proper  energy  and  vitality, 
must,  in  all  conflicts  with  the  powers  of  the  general  govern- 
ment, sink  beneath  the  superior  strength  and  natural  suprem- 
acy of  the  latter.  Such  a  state  of  things  would  as  surely 
lead  to  a  dissolution  of  the  Union,  as  a  violent  and  unconsti- 
tutional assertion  and  exercise  of  the  doctrine  of  State  rights ; 
for,  so  soon  as  the  just  powers  of  the  States  in  their  constitu- 
tional spheres  fail  to  be  properly  and  duly  exercised,  so  soon 
will  the  power  of  the  Union  begin  to  be  irksome,  and  finally 
become  intolerable. 

Now,  there  is  no  department  of  a  State  government  more 
necessary,  or  more  efficient,  in  the  assertion  and  maintenance 
of  the  legitimate  constitutional  rights  and  powers  of  the  State, 
than  its  Judiciary.  It  is  the  Judiciary  of  a  State,  for  example, 
that  is  to  construe  and  declare  the  constitutional  law  of  that 
State,  and  the  rights  of  its  citizens  and  inhabitants  under  that 
law.  It  is  for  the  Judiciary  of  a  State  to  declare  what  is  the 
law  which  determines  the  rights  of  property  and  of  persons 
within  that  State  ;  to  determine  whether  the  legislation  of  the 
State,  which  regulates  those  rights,  is  in  conformity  with 
the  provisions  of  its  Constitution  ;  and  these  adjudications  of 
a  State  Judiciary  are  and  must  be  received  and  recognized  as 
the  law  of  that  State,  in  the  tribunals  of  the  United  States. 
What  then  can  there  be  more  important  to  the  welfare  of  the 
people  of  a  State,  than  to  have  its  Judiciary  —  who  are  to 
declare  the  law  of  the  State,  upon  the  rights  of  persons  and 
of  property  within  that  State,  not  only  for  the  purposes  of  ad- 
judication in  her  own  courts,  but  for  the  purposes  of  adjudi- 
cation in  the  Federal  tribunals,  when  those  rights  are  brought 
into  question  there  —  composed  of  men  of  first-rate  ability, 
influence,  and  weight  ?  When  it  is  recollected,  that,  in  all 
cases  of  a  supposed  conflict  between  the  law  of  a  State  and 
the  provisions  of  the  Constitution  and  laws  of  the  United 
States,  and  in  all  controversies  between  the  citizens  of  one 
State  and  those  of  another,  the  Federal  Judiciary  is  empowered 


JUDICIARY.  49 

to  draw  to  itself  the  discussion  and  adjudication  of  all  ques- 
tions which  may  arise  between  individuals,  (subject  to  the 
single  qualification  that  it  is  to  look  to  the  Judiciary  of  the 
State  for  the  construction  and  declaration  of  the  State  law,)  it 
is  impossible  to  overstate  the  importance  of  having  the  very 
best  minds  employed  in  the  duty  of  ascertaining  and  declar- 
ing the  rules  which  determine  the  rights  of  property  and  per- 
son under  the  State  law.  If  the  declaration  and  maintenance 
of  those  rules  is  left  in  the  hands  of  inferior  men  ;  if  mistakes 
are  committed ;  if  violations  of  the  sound  principles  of  juris- 
prudence creep  into  the  administration  of  the  law  of  a  State, 
as  it  is  declared  by  its  Judiciary, — the  mischief  is  not  and 
cannot  be  confined  to  the  adjudications  of  its  own  courts,  but 
it  infects  also  all  the  fountains  of  justice,  whether  they  flow 
in  the  domains  of  the  State  itself,  or  in  those  of  the  Federal 
Union.  Certainly,  then,  it  cannot  be  pretended  that  the 
judges  of  a  State  ought  to  be  —  or  can  with  safety  and  pro- 
priety be  allowed  to  be  —  any  thing  less  than  men  of  the 
highest  order  of  talents,  learning,  and  character  that  can  be 
found  in  the  legal  profession  within  her  limits. 

But  what  do  our  late  Convention  propose  to  do  ?  It  is 
difficult  enough  now  for  any  Governor  of  Massachusetts  to 
find  men,  who  are  fit  to  be  judges,  —  and  who  are  willing  to 
leave  the  lucrative  practice  which  that  fitness  has  always  com- 
manded for  them, — to  take  a  seat  upon  the  bench.  If  the 
secrets  of  the  Executive  embarrassments  for  the  last  twenty 
years  or  more  were  to  be  laid  before  the  people,  I  apprehend 
that  it  would  be  found  that  there  have  been  few  applications 
for  judicial  appointments  by  the  men  most  to  be  desired,  and 
that  the  motive  of  public  duty  has  had  to  be  strongly  appealed 
to,  in  order  to  obtain  such  men.  But  the  Convention,  as  if 
they  desired  to  make  this  motive  still  less  available  than 
it  is  now,  propose  to  take  from  the  Executive  the  power  of 
offering  to  any  suitable  man  a  seat  upon  the  bench  during 
good  behavior,  and  to  confine  the  range  of  choice  to  men  who 
will  take  that  seat  for  ten  years,  with  the  chance  of  beino-  dis- 
missed to  private  life  at  the  end  of  that  term,  and  forced  to 
earn  their  livelihood  by  a  practice  which  has  been  absorbed 
by  others  in  the  keen  competitions  of  the  Bar.     And  what 


44  JUDICIARY. 

compensation  or  relief  for  this  unwise  and  imprudent  change 
do  they  ofler  to  the  people  ?  Why,  nothing  more  than  the 
confidence  which  they  feel,  that  the  judges  who  are  found 
really  competent  and  faithful  will  be  retained  upon  the  bench, 
by  a  renewal  of  their  commission.  Even  if  men,  who  are 
really  fit  for  the  office,  are  likely  to  be  found  upon  the  bench 
under  this  system,  —  men  willing  to  take  a  seat  with  a  com- 
mission for  ten  years  by  the  side  of  those  who  hold  their  com- 
missions during  good  behavior, —  I  doubt  if  the  confidence 
of  the  Convention  in  their  reappointment  is  not  entirely  mis- 
placed and  delusive.  But  whether  it  be  so  or  not,  that  confi- 
dence is  no  adequate  security  for  the  great  public  interests  at 
stake. 

Let  us  see  what  the  grounds  of  this  confidence  are,  as  they 
are  stated  in  the  following  passage  of  the  Address  of  the  Con- 
vention :  — 

"  In  a  free  government,  the  people  should  be  relieved  in  a  reasona- 
ble time,  and  by  the  ordinary  course  of  affairs,  from  the  weight  of 
incompetent  or  unfaithful  public  servants.  Under  the  present  Consti- 
tution, a  judge  can  only  be  removed  by  the  difficult  and  unpleasant 
process  of  impeachment  or  of  address.  Such  remedies  will  be  resorted 
to  only  in  the  most  aggravated  cases. 

"  Under  the  proposed  system,  we  have  no  apprehension  but  that 
faithful  and  competent  judges  will  be  retained  in  the  public  service, 
while  those  whose  places  can  be  better  filled  by  other  men  will  retire 
to  private  life,  without  violence  or  ungracious  circumstances,  and 
scarcely  with  observation." 

The  Convention  then  propose  to  adopt,  in  place  of  a  removal 
of  an  incompetent  or  unfaithful  judge  by  impeachment  or  ad- 
dress, a  system  of  removal  by  the  Executive  at  the  expiration 
of  ten  years,  "  without  violence  or  ungracious  circumstances, 
and  scarcely  with  observation"  "  having  no  apprehension  but 
that  faithful  and  competent  judges  will  be  retained  in  the  pub- 
lic service"  by  the  Executive.  This  plan  of  making  judges 
retire  to  private  life  without  observation,  at  the  pleasure  of 
the  Executive,  and  the  amusing  dread  of  the  "  ungracious  cir- 
cumstances "  of  an  impeachment  evinced  by  the  writers  of  the 
Address,  remind  me  strongly  of  a  letter  which  I  once  saw  in 
France,  in  the  hands  of  a  gentleman  curious  in  autographs, 


JUDICIARY.  45, 

written  by  a  revolutionary  functionary  during  the  Reign  of 
Terror  to  the  executioner,  at  the  time  when  the  guillotine 
first  began  to  work.  "  Citizen,"  said  the  letter,  "  I  am  pained 
to  inform  you  that  the  public  morals  were  yesterday  much 
shocked  by  the  unnecessary  stains  of  blood  upon  the  pave- 
ment ;  we  request  you,  in  future,  to  make  use  of  sawdust  at 
all  executions." 

But  to  return  seriously  to  a  serious  subject;  —  I  must  say, 
that,  in  my  humble  judgment,  the  public  interests  require  more 
security  that  competent  and  faithful  judges  shall  be  retained 
in  office,  than  can  be  afforded  by  any  degree  of  confidence 
which  anybody  may  feel  in  the  right  action  of  the  Governor, 
whoever  he  may  be.  The  best  disposed  Executive,  who  may 
wish  to  discharge  his  duties  conscientiously,  may  not  always 
be  able  to  do  right,  in  the  matter  of  reappointing  a  judge, 
against  the  clamors  of  party  and  the  claims  of  partisans.  The 
argument  comes,  or  may  come,  in  such  a  plausible  shape, — 
that  the  incumbent  has  enjoyed  the  full  time  contemplated  by 
the  Constitution,  and  that  a  faithful  and  distinguished  member 
of  the  Governor's  own  party  now  wishes  for  his  turn  in  the 
office,  —  that  it  may  be  very  difficult  for  all  Governors  to 
resist  it,  and  quite  impossible  for  some.  It  ought  not  to  be 
left  to  any  Executive  to  say  whether  a  judge  shall  be  removed 
from  office,  or,  what  is  in  effect  the  same  thing,  shall  be 
quietly  dropped  at  the  end  of  a  short  commission,  "  scarcely 
with  observation."  It  ought  not  to  be  so;  first,  because  it 
gives  the  Executive  a  power  over  the  Judiciary,  of  a  dangerous 
character,  which  may  be  and  will  be  wielded  to  political  ends. 
The  theory  of  our  government  and  the  theory  of  this  very 
Constitution  are,  that  no  department  of  the  government  ought 
to  have  such  a  power  over  any  other  department.  Secondly, 
the  Executive  ought  not  to  have  this  power,  because  there  is 
no  form  of  trial  of  the  fact  of  competency  or  faithfulness  pro- 
vided. All  is  to  pass  in  the  secret  recesses  of  the  Executive 
conscience,  and  he  is  to  be  practically  irresponsible  for  a  de- 
cision, which  he  makes  without  public  inquiry,  or  any  mode 
of  public  investigation  into  the  great  and  solemn  issue  of  the 
competency  and  faithfulness  of  a  judge.  In  the  third  place, 
it  ought  not  to  be  so,  because  an  error  in  judgment,  or  a 


46 


JUDICIARY. 


biased  and  prejudiced  decision  of  tiie  Executive,  would  in- 
flict an  irreparable  injury  on  the  public,  in  the  loss  of  a 
magistrate  who  had  had  ten  years'  experience  in  the  duties  of 
the  office,  and  whose  usefulness  may,  and  probably  will,  in- 
crease with  every  year  through  which  he  remains  in  it. 

On  the  other  hand,  the  value  and  importance  of  a  removal 
by  address  or  impeachment,  in  a  case  of  real  incompetency  or 
unfaithfulness,  cannot  be  too  highly  appreciated.  It  is  the 
only  mode  of  removing  a  judge,  or  taking  him  out  of  the 
public  service,  that  is  consistent  with  the  independence  of  the 
Judiciary  and  the  real  interests  of  the  people.  It  is  so, 
first,  because  it  keeps  the  power  of  the  different  departments 
of  the  government  distinct,  and  prevents  either  of  the  two 
others  from  exercising  political  control  over  the  Judiciary.  It 
is  true,  that  a  judge  may  be  impeached,  or  his  removal  may 
be  attempted  by  address,  from  political  motives;  but  these 
motives  must  be  brought  to  the  test  and  stand  the  trial  of  a 
public  investigation  into  the  charges  made,  upon  the  oaths  of 
witnesses  and  the  public  responsibility  of  all  who  have  any 
function  to  discharge  in  the  process.  And  therefore  I  say,  in 
the  second  place,  that  a  removal  by  address  or  impeachment 
is  vastly  to  be  preferred,  because  it  requires  a  formal  public 
investigation  into  the  facts  of  competency  and  fidelity.  The 
great  maxim,  that  "  no  man  should  be  condemned  unheard,'' 
is  in  this  case  important,  not  only  to  the  rights  of  an  indi- 
vidual, whose  reputation  and  usefulness  may  be  involved,  but 
it  is  equally  important  to  the  public  interests,  because  the 
public  ought  not  to  be  deprived  of  the  services  of  a  judge, 
without  a  careful,  open,  public,  and  responsible  finding  of  the 
fact,  that  he  is  unfit  for  the  station  which  he  fills.  Place  your 
judges  in  any  other  position,  and  you  may  be  deprived  of 
their  services,  at  the  instigation  of  a  demagogue,  through  the 
malice  or  the  selfishness  of  party,  or  by  the  machinations  of 
some  powerful  individual,  whose  schemes  of  private  rapacity, 
injustice,  or  oppression  it  may  have  been  their  duty  to  crush. 
In  the  third  place,  a  removal  by  impeachment  or  address  is  a 
far  better  security  for  good  conduct  in  the  judges,  if  they  are 
men  fit  for  the  position,  than  any  such  plan  of  dropping  them 
out  of  office  "  without  observation  "  can  ever  become.     What 


JUDICIARY,  47 

are  called,  in  the  sleek  delicacy  of  this  Address,  the  "  ungra- 
cious circumstances  "  of  an  impeachment,  are  the  best  possi- 
ble security  that  the  public  can  have  for  the  honesty,  impar- 
tiality, and  purity  of  a  judge.  The  functions  of  a  judge  are 
discharged  in  public,  before  the  eyes  of  all  men,  and  they  in- 
volve the  dearest  and  most  important  interests  of  the  State 
and  of  every  one  of  its  inhabitants.  And  that  he  may  walk 
uprightly  in  his  high  function,  and  discharge  it  with  the  best 
exertion  of  every  faculty  that  God  has  given  him,  and  with  a 
conscience  void  of  all  offence,  there  is  no  security,  which  men 
of  honor  and  uprightness  can  be  subjected  to,  like  the  sanc- 
tions of  that  form  of  public  trial  and  public  degradation,  which 
ought  to  follow  upon  any  dereliction  of  duty  or  any  substan- 
tiated charge  of  incompetency. 

But  I  am  admonished  by  the  length  of  this  paper  that  the 
subject,  which  I  have  not  yet  exhausted,  —  if  I  am  capable  of 
exhausting  a  question  of  such  magnitude  and  importance,  — 
ought  to  be  resumed  at  a  future  opportunity. 

Phocion. 


No.  VII. 

THE  JUDICIARY. 


If  the  designs  of  men  may  fairly  be  inferred  from  the 
schemes  which  they  set  on  foot,  and  from  the  arguments 
which  they  employ  to  secure  their  establishment,  then  the 
men  who  governed  the  proceedings  and  shaped  the  results  of 
the  late  Convention  may  justly  be  charged  with  an  attempt 
to  bend  the  institutions  of  the  Commonwealth  to  their  own 
political,  party  purposes.  With  regard  to  the  Judiciary,  they 
have  devised  a  plan  full  of  danger  to  the  best  interests  of  the 
people,  and  subversive  of  all  the  sound  maxims  of  constitu- 
tional government.  This  plan  is  entirely  different,  in  its 
features  and  effects,  from  the  one  that  was  generally  expected 
of  them.     Most  persons,  I  suppose,  anticipated  that  the  lead- 


48  JUDICIARY. 

ers  of  the  Coalition  party  would  be  in  favor  of  making  the 
Judiciary  elective  by  the  people.  In  this  anticipation,  it  ap- 
pears, more  credit  for  fairness  was  given  to  the  majority  of  the 
Convention  than  they  deserved.  The  plan  for  an  elective 
Judiciary  involves  more  confidence  in  the  people,  than  the 
majority  appear  to  have  entertained ;  and  it  involves,  also, 
comparatively,  too  little  opportunity  for  that  political  control 
over  the  Judiciary,  at  which  they  seem  to  have  aimed,  and  for 
which  they  have  made  ample  provision.  The  Constitution, 
which  they  undertook  to  remodel,  provides  that  the  judges 
shall  be  appointed  by  the  Executive,  but  shall  be  commissioned 
to  hold  their  offices  during  good  behavior.  This  tenure  of 
office  may  be  regarded  as  essential  to  that  degree  and  kind  of 
independence  of  the  Judiciary,  which  the  fundamental  max- 
ims of  our  government  affirm  to  be  the  best  security  for  the 
rights  of  the  citizen.  It  is  true,  that  a  tenure  of  office  for  a 
term  of  years,  if  that  term  be  so  long  as  to  expire  at  about  the 
average  age  at  which  vacancies  may  occur  from  natural 
causes,  might  be  consistent  with  a  proper  degree  of  independ- 
ence of  Executive  control,  under  a  system  of  Executive  ap- 
pointments. But  the  Convention,  in  total  disregard  of  the 
necessity  of  preventing  an  improper  control  over  the  Judiciary, 
have  adopted  a  term  of  ten  years,  which  is  just  about  one 
third  of  the  average  length  of  time  for  which  men  placed  upon 
the  bench,  at  the  age  of  forty  or  under,  may  be  expected  to 
continue  to  be  useful  in  the  public  service. 

But  this  is  not  all ;  nor  is  it  by  any  means  the  worst  feature 
of  the  proposed  change.  I  have  not  looked  into  the  Consti- 
tutions of  the  different  States  of  the  Union,  which  limit  their 
judges  to  a  term  of  years ;  and  I  think  it  very  immaterial 
whether  there  is  or  is  not  a  single  State  where  a  term  so 
short  as  ten  years  has  been  adopted,  leaving  the  appointment 
with  the  Executive.  But  I  hazard  nothing  in  saying,  that 
there  is  no  State  in  this  Union,  where  a  term  of  years  has 
been  adopted,  in  which  some  careful  provision  has  not  been 
made  for  obviating  the  consequences  of  having  a  majority  of 
the  Court  go  out  of  office  in  any  one  year,  by  fixing  different 
terms  for  those  first  appointed,  and  so  regulating  their  com- 
missions, that  the  Executive  cannot  have  the  power  of  ap- 


JUDICIARY.  49 

pointing  to  a  majority  of  vacancies  in  a  single  year.  The 
Constitution,  which  we  are  now  asked  to  adopt,  leaves  this 
wholly  to  chance.  Should  it  be  adopted,  and  should  the  ac- 
cident happen  that  a  majority  of  the  judges  were  to  die  within 
a  year,  then  once  in  every  ten  years  the  Governor  would  have 
the  appointment  of  a  majority,  for  all  time.  But  this  Constitu- 
tion declares  the  principle,  that  the  three  powers  of  the  govern- 
ment ought  to  be  kept  separate ;  and  yet  if  it  is  adopted,  with 
this  feature  in  it,  —  and  it  must  be  adopted  with  this  feature,  if 
at  all,  —  there  is  no  security  that  the  whole  judicial  power  is  not 
permanently  put  under  the  Executive.  Now,  if  you  will  take 
the  trouble  to  look  back  to  one  of  my  former  articles  on  the 
representative  system,  you  will  see  that,  under  the  scheme 
devised  by  the  Convention,  the  Governor,  who  is  to  have  this 
power  over  the  Judiciary,  —  by  which,  in  every  tenth  year,  he 
may  dismiss  a  majority  of  them  from  the  bench  or  retain  them 
there  according  to  his  own  pleasure,  and,  upon  motives  and 
reasons  for  which  he  is  to  account  to  nobody,  cause  them  to 
retire  to  private  life,  if  he  sees  fit,  "  scarcely  with  observation," 
—  may  himself  owe  his  poli-tical  elevation  to  this  power  to 
the  votes  of  a  minority  of  the  people.  If  you  will  look  into 
the  proposed  representative  system,  you  will  see  that  it  may 
be  demonstrated,  that  the  political  character  of  the  Governor 
may  be  determined  by  the  votes  of  a  majority  of  the  House 
of  Representatives,  who  will  be  elected  by  a  minority  of  the 
people ;  and  I  need  not  say,  that  if  the  commissions  of  a  ma- 
jority of  the  judges  should  expire  in  such  a  year,  and  they 
were  not  of  the  political  party  of  the  Governor,  the  chances 
are,  that  they  would  retire  to  private  life  "  without  violence 
or  ungracious  circumstances,  and  scarcely  with  observation." 
Few  men,  who  are  accustomed  to  reflect  upon  any  thing, 
can  doubt  that  there  is  such  a  thing  in  political  science  as 
truth.  That  there  is  a  right  and  a  wrong  in  politics  ;  that  the 
relations  between  the  different  institutions  by  which  human 
society  is  governed  and  protected  are  not  all  arbitrary ;  that 
liberty,  safety,  and  the  public  good  depend  upon  the  recog- 
nition and  maintenance  oi  cexidUn  principles,  and  cannot  flour- 
ish without  them,  —  are  truths  as  certain  as  any  thing  in 
mathematical  science.  And  there  are  few  people  in  the  world 
5 


50  JUDICIARY. 

who  have  done  more  for  the  discovery  and  practical  exhibition 
of  these  principles,  in  their  application  to  free  constitutional 
governments,  than  the  people  of  this  Commonwealth  of  Mas- 
sachusetts. Our  early  Colonial  history  ;  our  contests  with  the 
power  that  undertook  to  deprive  us  of  the  Charter;  our  great 
Revolutionary  discussions;  and,  finally,  our  new  and  admirably 
contrived  institutions,  by  which  we  undertook  to  substitute,  and 
did  successfully  substitute,  the  authority  of  the  people  for  that 
of  the  crown,  — in  the  framing  of  which  men  who  had  deeply 
studied  all  political  science  were  concerned  ;  —  prove  the  ad- 
vances that  we  have  made,  and  the  happy  results  that  we 
have  achieved,  not  merely  in  the  business  of  seZ/'-government, 
but  in  the  great  art  of  all  constitutional  government.  Among 
the  great  truths,  for  which,  in  their  application  to  purely 
popular  governments,  we  may  justly  claim  the  merit  of  dis- 
covery, this  doctrine  of  the  independence  of  the  judiciary  —  in 
which  I  include  its  freedom  from  political  control  —  is  one  of 
the  most  conspicuous  and  important.  It  is  of  the  utmost 
consequence  that  we  should  bring  home  to  ourselves,  as  a 
practical  truth,  that  this  doctrine  is  not  an  antiquated  preju- 
dice, that  has  served  its  turn  in  its  day,  and  may  now  give 
place  to  looser  arrangements.  It  cannot  give  place  to  any 
thing,  without  injury  to  the  best  interests  of  society,  for  the 
reason,  that- it  is  founded  in  truths  that  are  as  eternal  as  so- 
ciety itself,  and  as  indestructible  as  the  social  necessities  of 
man. 

Indeed,  if  the  tendencies  and  developments  of  society  among 
us  prove  any  thing,  they  prove  that  the  necessity  for  an  inde- 
pendent judiciary,  instead  of  having  become  an  old  prejudice, 
to  be  exploded  by  new  theories  as  society  advances,  becomes 
every  day  more  and  more  stringent;  —  that  not  only  is  its 
position  in  our  political  system  as  important  now  as  it  was 
when  the  foundations  of  our  civil  polity  were  laid,  but  that  its 
importance  is  gathering  every  day  fresh  illustration  and  newer 
force,  by  what  is  every  day  taking  place  around  us  and  in  the 
midst  of  us. 

In  the  first  place,  all  men  must  perceive,  on  a  moment's  re- 
flection, that,  in  a  popular  government,  the  judiciary  is,  for 
all  the  purposes  of  self-defence,  the  weakest  of  all  the  depart- 


JUDICIARY.  5t 

ments  into  which  government  is  divided.  It  has  no  political 
relations  to  the  people,  or  to  the  other  departments.  It  has 
no  patronage  to  dispense,  and  consequently  it  cannot  reward 
its  friends,  nor  punish  its  foes.  It  knows  neither  friend  nor 
foe.  It  is  employed,  unceasingly,  in  declaring  the  law  and  in 
administering  justice,  without  respect  of  person,  and  without 
regard  to  consequences.  In  all  well  regulated  communities, 
if  the  judges  are  attacked,  they  cannot  descend  into  the  arena 
to  defend  their  conduct,  or  to  vindicate  their  judgment.  When 
they  have  spoken,  the  law  has  spoken  ;  when  they  have  pro- 
nounced, society  has  uttered  its  command ;  and  neither  the 
dignity  of  the  one,  nor  that  of  the  other,  can  be  dragged  into 
a  strife  with  the  convicted  criminal,  or  the  disappointed  suitor, 
or  the  baffled  politician,  their  friends,  patrons,  or  supporters. 
Men  may  assail  them ;  the  press  may  libel  them ;  other 
branches  of  the  government  may  seek  to  overwhelm  them  ;  — 
but  through  all,  and  in  the  midst  of  all,  society  expects  to  see 
them  turn  neither  to  the  right  hand  nor  to  the  left,  and  re- 
quires them  to  give  their  days  to  their  great  duties,  and  to 
consume  their  midnight  oil  in  the  investigations  which  those 
duties  involve. 

Now,  is  not  this  all  just  as  true  to-day  as  it  was  seventy 
years  ago  ?  Nay,  as  the  community  becomes  more  and  more 
thronged ;  as  the  relations  of  property  and  of  persons  become 
more  and  more  complicated  ;  and  as  the  subjects  of  judicial 
controversies  become  more  and  more  entangled  with  those 
questions  of  constitutional  law  which  are  peculiar  to  our  sys- 
tems of  government,  and  which  connect  themselves  collater- 
ally with  all  our  politics,  does  not  the  necessity,  the  indispen- 
sable necessity,  for  an  impartial  judiciary  become  more  and 
more  manifest  ?  As  the  strife  between  political  parties  be- 
comes closer,  and  the  political  character  of  the  executive  and 
legislative  departments  is  determined  by  sharp  contests, 
which  alternately  elevate  and  depress  those  who  struggle  for 
political  power,  is  it  not  more  and  more  important  that  the 
judiciary  should  be  so  completely  removed  from  political  con- 
trol, as  to  be  out  of  the  reach  of  that  ambition  which  may  be 
tempted,  in  its  extremities,  to  turn  it  to  its  own  purposes  ? 
As  the  majesty   and  dignity  of  the  law  become  more  and 


JUDICIARY. 


more  important  to  society,  does  it  not  become  more  essential 
that  the  judiciary  should  preserve  that  position  of  digni- 
fied reserve,  which  deprives  it  of  the  power  of  self-defence 
against  external  attacks,  and  really  makes  it,  in  every  polit- 
ical sense,  the  weakest  department  in  the  government? 

There  is  scarcely  an  honest  man  in  the  community,  unless 
he  has  been  led  away  by  some  theory,  who  will  not  answer 
these  questions  affirmatively.  Let  me  then  direct  your  atten- 
tion to  one  of  those  tendencies,  which  has  attained  a  mon- 
strous development  in  our  own  day,  by  which  the  security 
and  good  order  of  society  are  seriously  menaced.  I  refer  to 
the  frequency  and  the  ferocity  with  which  judges  are  attacked 
for  their  decisions,  by  those  who  are  the  losers  in  a  political, 
and  sometimes  even  in  a  pecuniary  object.  Who  has  not 
seen  the  most  eminent  magistrates  in  the  land  assailed,  their 
characters  and  motives  and  names  and  persons  held  up  to 
ridicule,  to  hatred,  and  contempt,  because  of  some  decision 
involving  some  of  the  topics  of  the  day  ?  It  has  now  come 
to  be  a  common,  almost  a  certain  occurrence,  that  when  a 
decision  of  a  court  of  justice  is  made,  which  crosses  the  path 
or  disappoints  the  purposes  of  certain  agitators,  it  is  instantly 
followed  by  an  attack  upon  the  court ;  and  there  has  been 
nothing  in  the  history  of  libels  which  has  exceeded  these 
attacks  in  malignity,  energy,  and  fury.  And  this  warfare 
against  the  ministers  of  the  law  has  not  been  confined  to  oc- 
casions involving  the  plans  or  feelings  of  politicians  or  philan- 
thropists. I  have  known  a  disappointed  suitor,  who  had 
money  to  lavish  upon  an  unprincipled  press,  libel  the  whole 
Federal  Judiciary,  for  a  decision  involving  nothing  but  a  ques- 
tion of  property. 

In  a  country  where  the  press  is  free,  —  where  the  passions 
of  men  have  unbounded  expression  in  the  field  of  political 
discussion,  —  these  things  cannot  be  prevented;  and  the  sole 
remedy  is  in  the  penalties  with  which  the  law  visits  libel  and 
slander.  But  this  remedy,  open  to  all  other  men,  is  practically 
closed  to  judges.  It  is  closed  by  the  dignity  of  their  office  ; 
by  the  moral  necessity  that  they  should  leave  their  decisions 
to  vindicate  themselves,  and  their  characters  to  the  protection 
of  the  virtuous  and  well-disposed ;  and  by  the  impossibility 


QUALIFICATIONS   OF    VOTERS.  53 

of  pursuing  the  libeller  in  their  own  courts.  Against  this 
enormous  evil,  however,  they  cannot  stand,  if  their  tenure  of 
office  exposes  them  to  the  slightest  political  control.  Nothing 
can  secure  them  against  the  influence  of  the  demagogue,  or 
the  weakness  or  wickedness  of  those  who  profit  by  the  dema- 
gogue's agitations,  except  a  position  where  they  are  above  all 
the  elements  of  party  or  personal  strife,  and  where  they  are 
to  feel  no  responsibility,  save  to  that  public  trial,  which  is  to 
remove  them  from  the  bench,  upon  a  public  conviction  of 
incompetency  or  unfaithfulness. 

Phocion. 


No.   VIII. 

QUALIEICATIONS  OF  VOTEES. 

It  has  long  been  the  policy  of  this  Commonwealth  to  ex- 
tend the  right  of  suffrage  to  all  males  of  the  age  of  twenty- 
one  years  and  upwards  (except  paupers  and  persons  under 
guardianship)  who  have  resided  in  the  State  for  one  year,  and 
in  the  town  where  the  vote  is  offered  for  six  months,  and  who 
have  paid  a  poll-tax  of  ^  1.50  at  any  time  within  two  years 
previous  to  the  time  of  voting.  A  great  change  is  proposed 
by  the  Convention,  without  assigning  a  single  reason  for  it ; 
namely,  the  abolition  of  the  tax  qualification.  Like  many  of 
the  other  changes  proposed,  this  change  is  commended  to  the 
people  by  the  Address,  with  an  insinuation  of  what  is  not 
true.  The  tax  qualification  is  represented  as  a  property  qual- 
ification, and  the  proposed  change  is  represented  as  only  an- 
other step  in  a  reform  long  since  begun,  and  now  proper  to  be 
completed. 

"  Under  the  original  Constitution,"  says  the  Address,  "  voters  and 

public  officers  were  required  to  possess  property  qualifications.    These 

have  heretofore  been  removed  in  part^  and  we  now  recommend  the 

entire  abolition  of  the  property  qualification  in  the  voter  for  all  na- 

5* 


54  QUALIFICATIONS    OF    VOTERS. 

tional  and  all  State  officers  mentioned  in  the  Constitution.  The  obli- 
gations of  citizens  to  contribute  to  the  public  expenses  by  assessment 
of  taxes  are  not  in  any  degree  changed." 

There  is  so  great  an  amount  of  disingenuousness  in  this 
paragraph,  that  it  is  difficult  to  allow  it  to  pass  without  the 
imputation  of  dishonesty.  An  uninformed  man  might  read 
it,  and  be  led  by  it  to  suppose,  that  the  possession  of  some 
amount  of  property  is  now,  in  this  Commonwealth,  a  pre- 
requisite to  the  right  of  voting,  and  that  the  Convention  have 
undertaken  to  remove  this  qualification,  as  a  final  step  in  the 
extension  of  the  right  of  suffrage,  which  has  been  gradually 
taking  place,  until  nothing  but  this  remnant  of  former  restric- 
tions remained  to  be  removed.  But  on  looking  into  the  pres- 
ent Constitution  and  laws  of  the  Commonwealth,  he  would 
find,  that  there  is  no  property  qualification  whatever  for  voters, 
and  that  a  tax  qualification  only  is  required,  which  is  so  regu- 
lated as  to  be  within  the  means  of  any  man  who  can  work  ; 
and  on  looking  into  the  proposed  Constitution,  he  finds  that 
what  is  called,  with  such  high-sounding  phrase,  "the  entire 
abolition  of  the  property  qualification,"  is  the  removal  of  the 
obligation  to  pay  a  poll-tax,  which  cannot  by  law  exceed  nine 
shillings,  New  England  currency,  at  some  time  within  two 
years  previous  to  voting. 

The  qualification  of  paying  a  poll-tax  is  in  no  sense  a 
property  qualification.  It  is  an  abuse  of  terms,  so  to  describe 
it.  Such  a  tax  can  be  paid,  and  is  paid,  by  men  who  possess 
no  property  whatever,  which  the  law  does  not  exempt  from 
taxation.  It  is  not  assessed  upon  property.  It  does  not  pre- 
suppose the  possession  of  property.  It  is  assessed  upon  the 
individual,  rich  and  poor  alike,  as  his  just  contribution  for  the 
protection  of  his  person,  which  the  law  and  the  government 
afford  to  him. 

When  a  government  extends  the  right  of  suffrage  to  all 
persons  of  a  certain  age,  who  have  paid  such  a  tax,  it  prac- 
tically gives  the  right  to  everybody  not  a  pauper ;  for,  among 
the  able-bodied  poor,  and  among  all  who  maintain  themselves 
by  labor  of  all  descriptions,  there  are  very  few  persons  indeed 
who  cannot  pay  a  dollar  and  a  half  in  two  years,  or  seventy- 


QUALIFICATIONS    OF    VOTERS.  5& 

five  cents  in  a  year,  as  their  contribution  to  the  expenses  of  a 
government  which  protects  their  lives,  liberties,  and  labor.  If 
there  is  now  and  then  a  rare  case  of  a  man,  not  in  the  poor- 
house,  who  really  cannot  pay  his  poll-tax  without  suffering, 
it  is  so  rare  as  to  be  practically  of  no  moment  in  the  arrange- 
ments of  the  suffrage  of  the  State.  The  question,  therefore, 
whether  it  is  proper  to  remove  this  qualification,  is  a  question 
of  general  policy,  composed  of  two  elements,  one  of  which 
has  reference  to  the  public  good,  or  the  interests  of  the  State, 
and  the  other  concerns  the  good  of  the  individual,  in  whose 
favor  the  removal  of  the  qualification  may  be  supposed  to 
operate.  Let  us  examine  each  of  these  elements  separately  ; 
and  first,  let  us  look  at  the  interests  of  the  State. 

That  there  must  be  some  qualifications  of  voters,  —  that 
suffrage  in  this  Commonwealth  cannot  be  absolutely  univer- 
sal, and  so  completely  unrestrained  as  to  admit  of  the  impor- 
tation of  voters  into  the  State  for  the  purposes  of  an  election, 
and  of  all  the  other  frauds  which  an  unguarded  suffrage  en- 
courages and  allows,  —  is  a  settled  point  in  our  public  policy. 
No  convention  and  no  number  of  conventions  can  mai<e  the 
people  of  Massachusetts  consent  to  the  abolition  of  all  quali- 
fications. Upon  this  point,  the  experience  or  example  of  other 
States  is  of  value  to  us  only  as  a  warning.  It  may  suit  the 
condition  or  policy  of  some  States  to  have  universal  suffrage. 
But  what  is  done  in  one  State  of  this  Union  is  not  necessa- 
rily a  rule  for  any  other  State.  The  genius,  the  habits,  the 
institutions,  of  every  State  are  peculiar  to  itself;  and  it  is  one 
of  the  peculiarities  and  blessings  of  our  Federal  Republic, 
that  it  admits  of  a  union  for  common  purposes  between  States 
of  different  institutions,  different  habits  and  customs,  and 
whose  populations  have  had  a  very  different  history  and 
training,  from  the  first  settlement,  and  differ  widely  in  their 
present  condition.  In  this  matter  of  suffrage,  the  people  of 
Massachusetts  always  have  required,  and  always  will  require, 
some  qualification,  for  the  reason,  that  it  is  contrary  to  their 
settled  notions  of  the  fitness  of  things,  in  the  management  of 
their  government,  besides  being  wholly  unnecessary,  that 
suffrage  should  be  thrown  open  to  everybody  without  re- 
straint.    This  conviction  is  due  partly  to  ancient  habits,  but 


5Q  QUALIFICATIONS    OF    VOTERS. 

mainly  to  the  general  and  enlightened  perception  of  the  im- 
propriety of  admitting  to  a  share  in  the  government  of  such 
a  State  as  Massachusetts,  those  who  are  not  qualified  to 
make  her  laws  or  to  select  her  rulers.  It  is  a  conviction 
which  no  man  and  no  party  could  change,  if  it  were  at- 
tempted. 

But  along  with  it,  there  has  been,  and  still  is,  another  con- 
viction, equally  strong;  and  this  is,  that  the  qualifications 
ought  to  be  so  few  and  so  light,  as  to  admit  to  a  share  in  the 
political  power  all  persons  who  can  reasonably  be  presumed 
to  be  fit  to  exercise  it  We  have  supposed,  hitherto,  that  we 
have  attained  the  just  medium,  by  requiring  a  certain  age  ;  a 
brief  period  of  residence  outside  of  the  almshouse  ;  and  the 
payment  of  a  very  small  assessment  towards  the  public  ex- 
penses. The  question  is,  whether  one  of  these  qualifications 
can  be  abolished  with  any  more  propriety  than  the  others. 

The  Convention  do  not  propose  to  remove  the  exception 
against  paupers.  But  why  not?  Why  not  open  the  poor- 
houses,  and  admit  the  pauper  to  vote,  as  well  as  the  man 
who  pays  no  poll-tax  ?  Both  are  equally  interested  in  hav- 
ing a  good  government.  One  is  a  charge  to  the  government, 
the  other  maintains  himself;  but  neither  of  them  contributes 
any  thing  to  the  support  of  the  government,  unless  the  labor 
of  the  pauper,  which  the  government  appropriates  to  itself,  is 
to  be  considered  as  his  contribution,  in  which  case  he  has  the 
stronger  claim  of  the  two.  Now,  what  is  the  reason  for  ex- 
cluding the  pauper  from  voting  ?  It  is,  that,  as  a  general  rule, 
a  man  who  cannot  maintain  himself  by  his  labor,  in  such  a 
community  as  Massachusetts,  has  not  the  mental  and  moral 
qualifications  which  make  him  a  fit  depositary  of  political 
power.  But  when  you  leave  the  almshouse,  and  come  to  a 
class  who  stand  nearest  to  the  pauper,  —  to  a  man  who  can- 
not pay  a  poll-tax  of  $  1.50  in  two  years,  —  have  you  risen  at 
all  in  the  scale  of  mental  and  moral  qualifications  for  the  ex- 
ercise of  the  right  of  suffrage  ?  As  a  general  rule  —  there 
may  possibly  be  a  rare  exception  —  you  certainly  have  not. 
As  a  general  rule,  there  is  no  man,  out  of  the  poorhouse,  in  Mas- 
sachusetts, who  cannot  pay  this  poll-tax  and  yet  subsist,  who 
can  be  said  to  possess  the  proper  mental  and  moral  qualifica- 


QUALIFICATIONS    OF    VOTERS.  67 

tions  for  a  voter.  The  tax,  it  should  be  recollected,  is  not  to 
be  regarded  as  a  consideration  paid  in  the  purchase  of  the 
right  of  voting.  If  the  right  rested  upon  purchase,  the  rich 
man,  who  pays  a  large  tax  upon  property,  ought  to  have  a 
larger  share  of  political  power.  The  payment  of  the  tax  is 
evidence  of  the  possession  of  those  qualities  of  intelligence, 
prudence,  and  capacity,  which  fit  a  man  to  exercise  political 
power  in  a  government  of  the  people. 

The  qualifications  of  age  and  residence  are  to  be  regarded 
in  precisely  the  same  light,  as  far  as  they  go.  There  may  be 
a  case  of  a  man  who  is  as  fit  for  the  right  of  suffrage  at 
twenty,  as  other  men  are  at  twenty-one.  But  the  State  de- 
mands some  evidence  of  fitness  ;  and,  as  the  same  rule  must 
be  established  for  all,  it  selects  the  age  at  which  a  man  is 
deemed  capable  of  taking  care  of  his  own  affairs.  Just  so 
with  residence.  There  may  be  a  case  of  a  man  who  has  re- 
sided in  the  State  only  three  months,  who  has  as  much  knowl- 
edge of  and  interest  in  her  institutions,  as  he  will  have  when 
he  has  been  here  a  year.  But  inasmuch  as  immigration  into 
the  State  is  permitted,  and  is  perfectly  easy,  the  State  thinks 
proper  to  require  some  further  evidence  of  fitness  than  the 
age  of  the  voter,  and,  inasmuch  as  the  rule  must  be  general, 
it  takes  the  period  of  a  year's  residence,  in  order  to  cover  the 
cases  of  immigrants.  But  these  two  sources  of  evidence  are 
not,  as  the  State  has  hitherto  considered,  sufficient  to  cover 
all  cases,  and  to  form  a  complete  and  safe  general  rule  for  all. 
It  has  therefore  required  a  third  fact  to  be  added,  namely,  that 
the  voter  has  so  much  mental  and  moral  capacity  as  to  be 
able  to  pay  a  very  small  sum  towards  the  public  expenses. 
This  payment  is  deemed  proof  of  the  possession  of  that  de- 
gree of  intelligence,  capacity,  and  self-government,  which 
makes  a  man  a  fit  depositary  of  political  power. 

Unless,  therefore,  you  come  to  universal  suffrage,  and  abol- 
ish all  qualification,  there  is  no  more  propriety  in  dispensing 
with  one  of  the  three  positive  qualifications  heretofore  re- 
quired, than  there  would  be  in  dispensing  with  either  or  both 
of  the  others,  or  than  there  would  be  in  abolishing  the  nega- 
tive qualification,  that  the  voter  shall  not  be  a  pauper  or  a 
person  under  guardianship.     The  Convention  have  not  pro- 


58  QUALIFICATIONS    OF    VOTERS. 

posed  to  touch  more  than  one  of  these  positive  or  negative 
qualifications.  But  what  they  propose  to  do  is,  to  dispense 
with  that  one  of  the  proofs  of  fitness  and  capacity  for  the  ex- 
ercise of  the  right  of  suffrage,  which  is  necessary  to  make  the 
general  rule  complete  and  efficacious  ;  and  they  propose  this 
under  the  false  pretence,  that  the  change  would  be  a  removal 
of  a  property  qualification.  Now,  one  of  two  courses  must 
be  taken.  The  State  must  either  determine  that  it  will  re- 
quire no  evidence  of  fitness  in  the  voter,  or  it  must  adhere  to 
such  evidence  as  really  amounts  to  something  like  proof. 
The  age  of  twenty-one  years  proves  only  that  the  individual 
has  arrived  at  a  period  of  life  when  the  law  deems  him  fit  to 
become  his  own  master ;  not  that  he  is  fit,  even  for  that. 
Residence  in  the  State  for  a  year  proves  only  that  the  indi- 
vidual is  not  a  newly  arrived  stranger,  ignorant  of  our  laws, 
and  capable  of  judging  soundly  of  our  policy;  not  that  he  is, 
in  point  of  fact,  qualified  to  take  a  part  in  making  our  laws 
or  shaping  our  policy.  But  the  payment  of  his  assessed  share 
of  the  public  burdens  proves  a  capacity  so  to  govern  his 
own  affairs  as  to  acquire  the  means  of  payment,  and  from 
this  capacity  is  inferred  the  possession  of  mental  and  moral 
qualities,  which,  probably,  make  him  fit  to  exercise  the  trust 
involved  in  the  elective  franchise.  I  hold,  therefore,  that  as 
long  as  it  shall  continue  to  be  the  policy  of  the  State  to  re- 
quire any  evidence  of  such  fitness,  the  tax  qualification,  as  we 
have  hitherto  applied  it,  is  both  the  most  efficacious  and  the 
least  burdensome  evidence  that  can  be  demanded. 

With  regard  to  the  interests  of  the  class  who  may  be  sup- 
posed to  be  relieved  by  the  removal  of  the  tax  qualification,  I 
doubt  whether  such  relief  would  be  a  favor.  Certainly  it  is 
not  one,  that  an  enlightened  and  really  benevolent  statesman 
would  seek  to  confer.  What  is  it  that  raises  the  labor  of 
Massachusetts  above  the  labor  of  most  other  communities  on 
the  globe  ?  What  is  it  that  puts  the  laborer  among  us  upon 
a  footing  of  equality  with  the  rich  man,  who  rolls  by  him  to 
the  polls  in  a  coach  ?  Not  solely  the  high  wages  that  he  can 
command  ;  the  education  that  he  can  have  for  himself  or  his 
children ;  or  the  quality  of  food  or  clothing  that  he  can  enjoy. 
These  are  all  great  blessings  of  his  condition.     But  there  is 


QUALIFICATIONS    OF    VOTERS.  5§ 

added  to  them  likewise  the  great  political  right  to  be  one  of 
the  sovereigns,  —  one  of  the  governing  class  of  society  ;  — 
and  the  tenure  by  which  he  holds  this  right  is  precisely  the 
same  as  that  by  which  the  richest  man  in  the  community 
holds  it,  namely,  the  evidence  by  which  he  proves  his  capacity 
to  vote  intelligently  and  honestly  upon  public  affairs.  Re- 
quire no  such  evidence  from  him,  and  you  do  him  a  double 
injury ;  first,  you  take  away  from  him  a  great  stimulus  to 
exertion,  prudence,  thrift,  and  patriotic  feeling,  —  the  only 
stimulus  the  State  can  apply  to  him  ;  secondly,  you  degrade 
him  from  the  level  on  which  he  stands  with  the  rich,  by  leav- 
ing their  fitness  for  political  power  to  be  inferred  from  their 
wealth,  and  refusing  to  take  his  thrift,  frugality,  and  cheerful 
discharge  of  his  social  duties  for  proof  that  he  is  as  fit  for  it 
as  they  are.  The  dignity,  the  self-respect,  and  the  moral  in- 
dependence of  labor  in  this  Commonwealth,  you  may  depend 
upon  it,  have  an  intimate  connection  with  the  mode  in  which 
we  have  regulated  the  right  of  suffrage.  For  my  part,  if  I 
had  the  entire  shaping  of  this  right  for  a  community  of  free- 
men, I  would  give  more  for  the  qualities  that  are  fostered  by 
such  a  system  as  ours  has  been,  in  those  who  have  nothing 
but  their  labor  to  depend  upon,  than  for  all  that  unrestricted 
suffrage  can  do  for  them.  The  one  policy  elevates,  the  other 
depresses  them.  The  one  recognizes  them  as  moral  and  ac- 
countable beings,  whose  political  rights  rest  upon  the  same 
foundation  with  those  of  the  rich  and  prosperous ;  the  other 
treats  them  as  a  horde,  whose  suffrages  are  to  be  solicited 
by  demagogues  and  bought  by  parties  who  care  nothing 
for  their  fitness  to  give  an  intelligent,  or  their  fidelity  and 
caution  to  give  an  honest  vote.  Long,  long  may  it  be, 
before  the  labor  of  Massachusetts  is  thus  wounded  by  its 
friends  or  by  its  enemies. 

Phocion. 


60  COALITION    OF    1850. 

No.  IX. 

MAJORITY  AND  PLURALITY  ELECTIONS. 

In  the  winter  of  1850-51,  there  being  in  this  Common- 
wealth no  choice  of  Governor  by  the  people,  in  consequence 
of  the  state  of  parties,  the  choice  devolved  upon  the  Legisla- 
ture ;  and,  besides  the  complete  organization  of  the  State 
government,  that  body  was  then  to  choose  a  Senator  in  Con- 
gress. The  Legislature,  as  the  people  had  been,  was  divided 
into  three  parties,  neither  of  which  possessed  a  majority.  Of 
the  distinctive  principles  or  objects  of  these  parties,  —  as  to 
which  of  them  was  right,  in  my  opinion,  and  which  wrong,  — 
which  of  them  embraced  the  men  most  fit  to  be  intrusted  with 
the  government  of  the  State,  and  the  high  Federal  office  then 
to  be  filled,  —  it  is  not  my  present  purpose  to  speak.  I  wish 
now  to  deal  with  historical  facts  ;  —  facts  which,  unhappily, 
can  never  be  forgotten,  as  they  never  can  be  blotted  out  from 
the  history  of  Massachusetts. 

Two  of  the  political  parties,  which  were  struggling  to  obtain 
possession  of  the  State  government,  had,  in  the  popular  elec- 
tion, nominated  and  voted  for  separate  candidates  for  Gov- 
ernor, upon  entirely  distinct  and  opposite  political  principles ; 
but  they  had  at  the  same  time  formed  a  coalition  for  the  pur- 
pose of  electing  as  many  members  of  both  branches  of  the 
Legislature  as  they  could,  by  their  joint  action,  in  anticipation 
of  the  state  of  things  which  was  thus  actually  brought  about. 
The  consequence  was,  a  return  to  the  Legislature  of  many 
politicians,  who  cared  little  for  the  distinctive  organizations  to 
which  they  nominally  belonged,  in  comparison  with  the  great 
object  of  obtaining,  by  some  means  or  other,  as  many  of  the 
offices  that  w^re  to  be  filled  as  they  could  acquire.  The  Legis- 
lature, thus  composed,  came  together;  and  then  ensued  a 
series  of  transactions,  which  every  citizen  of  Massachusetts, 
who  has  not  been  led  astray  by  participation  in  or  defence  of 
those  proceedings,  must  always  regard  as  deeply  disgraceful, 
dishonorable,  and  corrupt.     Two  caucuses  of  members  of  the 


COALITION    OF    1850.  61 

Legislature,  possessing  distinct  political  principles,  and  elected 
by  the  people  because  of  those  professions,  were  then  seen 
trading  for  the  offices  of  the  State  with  each  other.  Votes 
were  promised  and  given,  on  one  side,  in  consideration  of 
votes  promised  and  given  on  the  other.  Office  was  balanced 
against  office,  and  dignity  against  dignity,  until  the  places  of 
trust,  which  the  people  have  created  for  the  public  good,  and 
intended  should  be  filled  with  reference  to  it,  were  all  parcelled 
out  to  the  entire  and  mutual  satisfaction  of  the  "  contracting 
parties."  Into  this  great  bargain  for  place,  the  high  office  of 
an  United  States  Senator  was  brought  as  a  makeweight,  and 
was  obtained  by  one  faction  as  its  pay  for  what  it  conceded  to 
the  other.  Whether  the  individual  who  obtained  the  office 
fitly  represented,  or  represented  at  all,  the  political  sentiments 
of  a  majority  of  the  people  of  the  State,  was  a  consideration 
to  which  no  one  gave  the  slightest  heed.  It  was  sufficient, 
that  the  coalition  of  the  two  factions  presented  an  opportunity 
to  make  the  terms  which  would  secure  the  place,  and  that  the 
terms  of  the  bargain  were  such  as  to  insure  the  result. 

If,  now,  there  is  such  a  person  in  Massachusetts  as  an  intel- 
ligent and  reflecting  man,  who  has  no  party  feelings  about  this 
transaction,  or  one  who  can  lay  them  aside  sufficiently  to  look 
at.it  in  a  true  light,  he  can  scarcely  fail  to  see  two  things : 
first,  that  such  proceedings  are  essentially  as  corrupt  as  the 
purchase  of  offices  by  means  of  a  money  consideration,  or  by 
any  thing  else  given  for  the  votes  necessary  to  secure  them ; 
and,  secondly,  that  it  is  possible  to  make  constitutional  pro- 
visions concerning  the  mode  of  organizing  the  State  govern- 
ment, which,  instead  of  diminishing,  will  increase  the  facility 
with  which  parties  can  enter  into  and  complete  such  bargains. 
It  is  not  necessary  to  enlarge  upon  the*  first  point; — the 
second  demands  our  serious  consideration,  now  that  a  Con- 
stitution is  before  us,  which,  for  some  reason,  not  stated^  re- 
quires a  majority  in  some  elections,  and  admits  of  only  a  plu- 
rality in  others. 

It  is  obvious,  that,  if  a  majority  of  the  popular  vote  were 

not  required  for  the  election  of  a  Governor,  the  election  would 

not  be  thrown  into  the  Legislature,  in  any  state  of  parties. 

We   had,  until  we   found   ourselves   in  the   state  of  things 

6 


$3  MAJORITY    AND    PLURALITY. 

brought  about  by  the  Coalition,  escaped  such  demoralizing 
scenes  as  were  enacted  in  the  Legislature  of  1850-51,  be- 
cause the  organization  of  the  two  branches,  under  the  pro- 
visions of  the  Constitution,  brought  into  those  bodies  the 
representatives  of  two  parties  only,  who  were  so  situated  as  to 
be  out  of  the  reach  of  the  temptation  to  trade  away  their 
principles  for  political  power.  The  election  of  Governor  was 
therefore  thrown  into  the  Legislature,  without  danger  to  the 
interests  or  the  honor  of  the  State  ;  and  as  long  as  the  political 
condition  of  the  State  continued  to  be  that  of  a  people  divided 
into  two  distinct  and  well-defined  parties,  no  serious  mischief 
or  inconvenience  could  ensue  from  the  rule,  which  carried  the 
election  into  the  Legislature,  on  a  failure  to  obtain  a  majority 
of  the  popular  vote.  But  when  a  third  party  came  into  the 
field,  and  succeeded  in  electing  a  sufficient  number  of  mem- 
bers of  both  houses  of  the  Legislature  to  enable  them  to  hold 
out  the  temptation  to  one  of  the  other  parties  to  unite  with 
them  for  the  purpose  —  and  the  sole  purpose  —  of  obtaining 
and  sharing  the  offices  of  the  State,  this  constitutional  rule 
became  the  efficacious  instrument  for  the  accomplishment  of 
the  whole  design.  It  brought  the  prize  of  the  Governorship 
within  the  grasp  of  such  a  coalition ;  and  this  prize,  with  all 
the  attending  patronage  and  power  of  the  office,  was  sufficient 
to  sweep  into  the  arrangement  every  office  of  the  State,  and, 
as  it  turned  out,  to  overcome  the  virtue,  consistency,  and  self- 
respect  of  both  the  factions  that  entered  into  the  scheme. 

And  now  we  have  a  Constitution  offered  to  us,  which  has 
been  made  by  some  of  the  very  men  who  took  a  leading  part 
in  that  spoliation  of  the  offices  of  the  State.  Their  political 
relations,  and  the  relations  of  their  respective  parties  to  the 
Commonwealth,  are  unchanged.  They  are  numerically  what 
they  were  then  ;  at  least,  they  have  not  increased,  and  it  is 
probable  that  one  of  them  is  somewhat  diminished.  We 
may,  accordingly,  not  expect  to  find  the  provisions  of  this 
Constitution  so  framed,  as  to  discourage  or  prevent  similar 
transactions,  in  the  organization  of  the  government.  When 
two  parties  have  passed  through  a  traffic  like  that  of  1850-51, 
they  will  not  be  found  creating  any  obstacles  to  a  repetition 
of  the  profitable  transaction.     If,  consequently,  you  will  ex- 


MAJORITY    AND    PLURALITY.  63 

amine  carefully  the  provisions  which  they  have  made,  you  will 
see  internal  evidence  enough  that  they  have  shaped  them  with 
a  purpose.  If  anybody  had  found  this  Constitution  in  the 
street,  without  the  slightest  knowledge  of  the  occurrences  of 
the  past  summer,  he  would  have  had  no  reason  to  doubt  by 
whom  it  had  been  made,  or  what  it  had  been  made  for. 

It  retains  the  rule  of  a  majority  for  the  election  of  a  Gov- 
ernor by  the  people,  and  abolishes  it,  for  a  plurality,  in  the 
election  of  Senators.  It  abolishes  the  majority  rule  for  a 
seat  in  the  Senate,  and  retains  it  for  a  seat  in  the  House. 
It  enables  a  minority  of  the  people  to  elect  a  majority  of 
members  of  the  House,  and  this  majority  are  to  select  the 
two  candidates  out  of  three^  who  are  to  be  sent  to  the 
Senate,  when  there  is  no  choice  of  Governor  by  the  people. 
It  thus  secures  and  perpetuates  the  rule,  by  which  a  popular 
election  of  Governor,  in  the  existing  state  of  things,  is  almost 
sure  to  be  defeated.  Then,  when  it  gets  the  election  into  the 
House,  the  political  character  of  the  two  candidates  who  are 
to  be  sent  up  to  the  Senate  is  to  be  determined  by  those  who 
represent  a  minority  of  the  whole  people  ;  and  finally,  when 
the  matter  reaches  the  Senate,  the  ultimate  choice  is  to  be 
made  by  men  who  obtain  their  seats  at  the  board  by  a  plural- 
ity only  of  the  votes  in  their  respective  districts. 

Such  a  system,  it  is  needless  to  say,  is  destitute  of  all  prin- 
ciple and  consistency.  It  is  not  to  be  dignified  with  the  name 
of  a  system.  It  is  simply  a  disgraceful  scheme  for  obtaining 
political  power,  without  the  concurrence  of  the  people,  who 
are  the  rightful  holders  and  dispensers  of  that  power.  If 
provision  must  be  made  to  meet  the  case  of  a  failure  to  elect 
the  Governor  by  popular  vote,  the  very  first  principle  in  that 
provision  should  be,  that  those  who  are  to  become  the  electors  in 
the  secondary  stage  of  the  election  should  themselves  represent 
the  largest  possible  number  of  the  people.  This  principle  the 
Convention  have  directly  reversed.  By  the  manner  in  which 
they  design  to  constitute  the  House  of  Representatives,  they 
have  made  the  secondary  electors  of  the  Governor,  that  is, 
the  majority  of  the  House,  the  representatives  of  a  small 
minority  of  the  whole  people,  dwelling  in  the  smallest  and 
poorest  class  of  towns  in  the  State.     Finally,  when  the  third 


64  MAJORITY    AND    PLURALITY. 

stage  of  the  election  is  reached,  the  ultimate  electors  of  the 
Governor  may  be  persons  who  not  only  do  not  represent  polit- 
ically a  majority  of  the  whole  people  of  the  State,  but  each 
one  of  whom  may  in  fact  be  elected  by  an  actual  minority  of 
the  votes  in  his  own  district. 

Let  me  now,  as  an  illustration  of  the  nature  of  this  scheme, 
suppose  that  the  framers  of  the  Constitution  of  the  United 
States,  as  in  fact  was  once  proposed,  had  provided  that  the 
people  should  vote  directly  for  the  President,  and,  in  case  no 
person  should  receive  a  majority  of  the  popular  vote,  that  the 
choice  should  be  made  by  certain  electors.  But  suppose  also, 
what  in  point  of  fact  never  was  proposed,  that  they  had  pro- 
vided, that  a  majority  of  these  electors  should  be  chosen  by  a 
class  of  States  containing  a  small  minority  of  the  American 
people.  If  we  can  imagine  such  a  provision  ever  to  have 
taken  effect,  it  would  long  ago  have  overthrown  the  govern- 
ment. The  intolerable  absurdity  and  folly  of  such  a  scheme 
would  have  destroyed  the  Union,  on  the  very  first  occasion 
that  might  have  brought  it  into  practical  operation.  And  it 
ought  no  more  to  be  tolerated  in  a  State,  than  it  ought  to  have 
been  or  could  have  been  tolerated  in  the  Union.  The  Governor 
of  a  State  is  the  representative  of  the  people  of  the  State,  just 
as  the  President  is  the  representative  of  the  people  of  the  Unit- 
ed States.  Like  the  President,  he  is  a  distinct  branch  of  the 
legislative  power,  besides  being  the  Executive ;  and,  if  he 
cannot  be  the  actual  representative  of  the  political  sentiments 
of  a  majority  of  the  people,  speaking  through  a  primary  elec- 
tion, he  ought  to  be  designated,  in  the  secondary  election,  by 
those  who  represent  the  largest  possible  number  of  the  people. 

But  argument  and  discussion  on  such  a  scheme  as  this  of 
the  Convention  are  a  waste  of  words.  I  will  add  a  few  ob- 
servations upon  one  of  their  plausible  side-issues,  and  then  I 
shall  have  done  with  this  part  of  their  plan.  After  stating 
how  much  of  the  majority  rule  they  retain,  and  how  much  of 
the  plurality  principle  they  adopt,  without  assiffmng-  a  single 
reason  for  their  contradictory  provisions,  they  say  :  — 

"  At  the  same  time,  we  have  provided  that  the  Legislature  may  sub- 
stitute the  plurality  rule  whenever  the  public  will  shall  demand  it,  with 
a  condition,  that  no  act  for  that  purpose  shall  take  effect  until  one  year 


MAJORITY    AND    PLURALITY.  65 

after  its  passage.  Thus  we  have  given  an  opportunity  to  test  the  wis- 
dom of  the  plurality  system  by  experience,  and  power  to  apply  it  to 
every  popular  election  in  the  Commonwealth,  whenever  the  deliberate 
judgment  of  the  people  shall  require  it." 

Now,  upon  this  the  reader  will  have  the  goodness  to  observe 
three  things:  — 1.  Supposing  that  the  public  will  should  ever 
be  in  favor  of  a  uniform  and  consistent  rule  for  all  popular 
elections,  and  that  that  rule  should  be  the  plurality  principle, 
who  are  to  interpret  the  public  will  ?     We  have  heard  much 
from  the  writers  of  the  Address  about  "  interpreting  the  peo- 
ple's will."     Who  are  to  interpret  it  in  this  instance  ?     Why, 
a  Legislature,  chosen  under  this  new  Constitution,  in  which 
a  minority  of  the  people  will  have  acquired  a  power  that  they 
will  never  part  with,  until  it  is  wrested  from  them  by  another 
Constitution,  or  something  worse.     It  is  not  made  imperative 
upon  the    Legislature   to   substitute  the  plurality  rule,  any- 
where ;  it  is  only  provided  that  they  may.     2.  It  is  an  entirely 
false  issue  to  pretend  that  "  the  wisdom  of  the  plurality  rule  " 
is  involved  in  the  acceptance  or  rejection  of  this  Constitution. 
If  it  had  been  made  imperative  upon  the  Legislature  to  try 
the  plurality  rule,  there  would  have  been  some  pretence  to  say 
that  an  opportunity  was  "  offered  to  test  its  wisdom."     But 
the  Convention  have  provided  no   such   opportunity.     What 
they  have  done  is,  Jirst,  to  leave  it  wholly  optional  with  the 
Legislature,  and,  secondly,  to  constitute  a  Legislature  that  will 
have  the  strongest  possible  motives  to  make  them  blind  and 
deaf  to  every   demonstration   of  the  popular  will.     3.  If  the 
Legislature  thus  constituted  should  ever  be  driven,  by  any 
chance,  into  a  change  of  the  rule,  the  act  is  not  to  take  effect 
until  one  year  after  its  passage.     One  more  chance  is  thus 
reserved  to  the  political  schemers  who  have  devised  this  sys- 
tem, to  obtain  possession  of  the  government,  and  who  knows 
what  may  not  be  done  for  party  power  and  party  purposes, 
while  the  people  stand  waiting  a  whole  twelvemonth  for  the 
uniform  rule  that  is  to  bring  their  own   government  a  little 
more  under  their  own  control  ? 

Phocion. 


66  JURIES    JUDGES    OF    THE    LAW. 

No.  X. 

JXnilES  JUDGES  OF  THE  LAW. 

Among  the  propositions  submitted  by  the  late  Convention, 
as  amendments  to  the  Constitution,  is  the  following :  — 

"  In  all  trials  for  criminal  offences,  the  jury,  after  having  received 
the  Instruction  of  the  court,  shall  have  the  right,  in  their  verdict  of 
guilty  or  not  guilty,  to  determine  the  law  and  the  facts  of  the  case  ;  but 
it  shall  be  the  duty  of  the  court  to  superintend  the  course  of  the  trials, 
to  decide  upon  the  admission  and  rejection  of  evidence,  and  upon  all 
questions  of  law  raised  during  the  trials,  and  upon  all  collateral  and 
incidental  proceedings  ;  and  also  to  allow  bills  of  exceptions.  And  the. 
court  may  grant  a  new  trial  in  case  of  conviction." 

It  is  understood  to  be  the  purpose  of  this  amendment  to 
make  the  jury  in  criminal  trials  judges  of  the  law;  that  is  to 
say,  to  give  them  the  power  of  determining  the  law  as  well  as 
the  facts  of  the  case,  and  to  remove  the  obligation  to  receive 
the  instructions  of  the  court  upon  the  law  as  absolutely  bind- 
ing. Whether  the  terms  of  the  proposition  are  such  as  will 
accomplish  this  object  with  safety  to  the  accused,  I  shall  con- 
sider hereafter ;  at  present,  I  wish  to  discuss  the  question  wheth- 
er the  object  itself  is  a  fit  and  proper  one  to  be  accomplished. 

The  importance  of  a  right  decision  of  this  question  cannot 
be  overstated.  If  this  proposition  is  adopted  as  a  part  of  our 
Constitution,  the  whole  administration  of  our  criminal  law,  as 
it  involves  the  rights  of  the  Commonwealth  on  the  one  hand, 
and  those  of  the  accused  on  the  other,  will  be  seriously  and 
deeply  affected  by  it.  If  the  rights  of  the  public,  or  the  rights 
of  the  accused,  either  or  both,  shall  be  essentially  impaired  or 
endangered  by  this  change,  the  whole  institution  of  jury  trial 
will  lose  ground  in  the  public  confidence  and  respect.  The 
persons  who  propose  this  change  affect  to  belong  to  the  party 
of  progress  and  improvement.  This  step,  instead  of  being  a 
step  in  the  direction  of  progress  and  improvement  in  the 
science  of  government,  is  a  step  backwards  towards  the  Dark 
Ages.    It  is  a  step  which  it  would  be  discreditable  to  a  people 


JURIES    JUDGES    OF    THE    LAW.  67 

SO  intelligent,  and  possessed  of  such  ample  means  for  the  safe, 
correct,  and  consistent  administration  of  criminal  jurisprudence, 
as  the  people  of  Massachusetts  are,  to  take.  It  is  so,  because 
it  confounds  things  perfectly  distinct  from  each  other  ;  because 
it  intrusts  the  determination  of  a  class  of  questions  of  great 
difficulty  and  nicety  to  a  tribunal  unfit  to  determine  them  ; 
because  it  exposes  the  rights  of  the  public  and  the  rights  of  the 
accused  to  unnecessary  dangers  ;  and  because  it  will  inevita- 
bly diminish  the  public  respect  for  the  great  and  important 
institution  of  trial  by  jury. 

The  real  value  of  trial  by  jury  is  the  same  in  kind,  although 
it  may  differ  in  degree,  in  both  criminal  and  civil  cases.  No 
man,  who  has  not  some  political  purpose  to  gain,  and  who 
really  understands  the  subject,  would  think  of  assigning  to 
•trial  by  jury  in  civil  cases  a  higher  value  than  this;  viz.  that 
it  furnishes  a  safe  and  convenient,  and  therefore  valuable 
tribunal,  for  the  determination  of  questions  of  fact.  There  is, 
undoubtedly,  in  the  intelligence  and  knowledge  of  human  na- 
ture and  of  human  affairs,  which  are  to  be  found  among  a  jury 
of  twelve  men  drawn  from  the  common  and  miscellaneous 
pursuits  of  life,  great  aptitude  for  the  determination  of  ques- 
tions which  depend  upon  human  testimony.  But,  beyond 
this,  the  value  of  jury  trial  in  civil  cases  cannot  be  carried. 
No  man,  with  an  important  right  in  litigation  between  him- 
self and  his  neighbor,  would  be  willing  to  have  a  jury  deter- 
mine any  thing  more  than  the  facts  of  his  case.  A  proposition 
to  have  them  determine  the  law  would  be  instantly  rejected 
by  every  litigant.  In  criminal  cases,  there  is  to  be  added  to 
the  value  just  stated  one  further  element,  which  trial  by  jury 
introduces  into  the  administration  of  the  criminal  law,  as  a 
safeguard  to  the  liberty  of  the  citizen,  —  between  the  govern- 
ment and  the  accused,  —  viz.  the  interposition  of  the  people. 
But  this  does  not  render  the  people,  or  their  representatives, 
the  jury,  more  capable  of  determining  questions  of  law  cor- 
rectly in  criminal  cases,  than  in  civil.  They  never  were  made 
a  part  of  the  tribunal,  upon  any  notion  that  they  were  more  fit 
to  determine  a  question  of  criminal  law,  than  one  of  civil  right; 
and  although  the  common  law  has  empowered  the  jury  to 
return  a  general  verdict  of  guilty  or  not  guilty  in  criminal 


68  JURIES    JUDGES    OF    THE    LAW. 

cases,  which  involves  a  decision  of  the  law,  as  well  as  of  the 
fact,  it  has  always  proceeded  upon  the  idea  that  the  jury 
should  take  the  instructions  of  the  court  as  an  evidence  of 
the  law,  which  they  are  bound  to  regard.  The  question  there- 
fore remains,  in  regard  to  criminal  cases,  whether  the  jury  are 
as  competent  to  determine  the  law,  as  they  are  to  determine 
the  facts  involved  in  the  issue.  If  they  are  not,  then  the  pub- 
lic are  bound  to  provide  for  the  determination  of  the  law  of 
the  case  by  some  tribonal,  or  some  portion  of  the  tribunal 
before  which  the  trial  takes  place,  that  is  competent  to  deter- 
mine it,  with  safety  to  the  rights  of  the  accused  and  the  rights 
of  the  government. 

I  will  now  proceed  to  illustrate  the  views  which  I  take  of 
this  subject,  a  little  more  in  detail.  A  man  is  accused  of 
crime,  and  is  set  to  the  bar  to  be  tried  for  an  offence  which 
must  be  distinctly  and  specifically  charged.  If  he  is  guilty,  it 
is  of  the  utmost  importance  that  he  should  be  convicted.  If 
innocent,  it  is  equally  important  that  he  should  be  acquitted. 
The  very  statement  of  these  propositions  shows  that  there  are 
rights  involved  in  the  trial,  on  both  sides,  of  equal  importance. 
The  question  to  be  determined  is,  whether  the  party  is  guilty 
of  the  crime  charged ;  but  this  question  is  composed  of  two 
elements,  or  rather  it  is  an  inquiry  involving  two  questions, 
viz. :  —  First,  did  the  accused  do  certain  acts  ?  Secondly,  do 
those  acts,  under  the  circumstances  in  which  he  did  them, 
constitute  the  crime  charged?  The  first  is  purely  an  inquiry 
into  a  matter  of  fact.  The  second  is  purely  an  inquiry  into  a 
matter  of  law.  A  tribunal,  or  a  part  of  a  double  tribunal,  may 
be  very  fit  to  determine  the  first,  and  very  unfit  to  determine 
the  last.  The  two  questions  are  so  essentially  different,  both 
in  their  nature  and  in  the  elements  for  their  determination, 
that  a  capacity  to  determine  the  former  upon  correct  princi- 
ples has  no  tendency  to  show  a  capacity  for  determining  the 
latter.  Because  a  jury  of  twelve  men,  taken  from  all  the 
occupations  of  life,  are  extremely  competent  to  decide,  upon 
evidence,  whether  the  accused  did  certain  acts,  it  does  not  at 
all  follow  that  they  are  competent  to  determine  whether  those 
acts  constitute  the  crime  charged.  Take  the  common  case 
which  occurs  in  nine  instances  out  of  ten  of  indictments  for 


JURIES    JUDGES   OF    THE    LAW.  69 

murder,  where  the  question  is,  whether  the  killing  amounts  to 
murder,  or  only  to  manslaughter.  It  will  not  be  pretended, 
by  any  man  of  common  sense  and  common  honesty,  that  the 
nice  distinctions  between  murder  and  manslaughter  are  known 
to  the  common  run  of  men  likely  to  be  drawn  upon  juries, 
however  great  their  general  intelligence,  or  however  high  their 
social  position.  They  may  be,  and  I  think  they  are,  very 
capable  indeed  of  deciding  correctly  what  acts  the  accused 
did; — whether  he  struck  the  blow  in  sudden  passion,  and  in 
a  moment  of  human  infirmity,  or  in  premeditated  malice; 
whether  provocation  existed  or  was  absent;  —  whether  the 
accused  himself  stood  in  any  danger  from  the  deceased  ;  —  or 
whether  the  deceased  did  any  thing  to  draw  upon  himself  the 
fatal  stroke. 

These  are  questions  which  depend  entirely  upon  testimony 
as  to  matters  of  fact,  and  which  common  men  are  not  only 
capable  of  determining,  but  which  they  can,  perhaps,  best  de- 
termine, out  of  their  general  acquaintance  with  human  actions 
and  motives,  and  their  general  capacity  to  judge  of  the  force 
of  human  testimony.  But  the  question,  whether  the  acts  of 
the  accused,  in  all  the  circumstances  in  which  he  stood, 
amount  to  murder  or  only  to  manslaughter,  depends  upon 
principles  and  distinctions  with  which  common  men  are  not 
familiar.  Of  his  own  knowledge,  or  from  his  own  sources  of 
knowledge,  not  one  juror  in  a  thousand  can  correctly  decide 
this  question.  He  must,  in  some  way,  be  informed  at  the 
trial,  and  by  some  one  having  a  part  to  perform  in  the  trial, 
what  the  rules  and  principles  are,  on  which  the  just  determina- 
tion of  this  question  depends.  We  will  suppose  that  he  is 
informed  by  the  court,  but  is  left  at  liberty  to  apply  the 
knowledge,  or  not  to  apply  it,  as  he  sees  fit ;  —  to  take  so  much 
of  it  as  he  chooses  to  take,  and  to  reject  the  rest ;  —  or  to  treat 
the  whole  with  inattention,  according  to  his  general  views  of 
the  propriety  or  expediency  of  convicting  or  acquitting  the 
accused.  The  difficulty  —  and  it  is  a  fatal  one  to  the  pro- 
priety of  this  plan  —  is,  that,  in  this  state  of  things,  neither  the 
public  nor  the  accused  can  have  any  guaranty  that  the  verdict 
will  be  founded  on  correct  views  of  the  law.  As  to  the  facts, 
the  oath  of  the  juror  is  a  guaranty  for  a  correct  verdict;  for 


70 


JURIES   JUDGES    OF    THE    LAW. 


when  a  juror  is  sworn  to  render  a  true  verdict,  according  to 
the  evidence,  his  conscience  is  reached  ;  —  the  evidence  places 
facts  before  him,  and  he  cannot  disregard  those  facts  without 
violating  his  conscience.  But  when  he  is  sworn  to  render  a 
true  verdict  according  to  the  law  and  the  evidence,  if  he  is 
left  to  "  determine  "  absolutely  what  is  law,  his  conscience  is 
not  reached ;  for  what  the  judge  or  the  counsel  in  the  cause 
may  tell  him  is  law,  amounts  only  to  opinions,  and  if  he  is  the 
ultimate  judge  of  the  law,  he  may  have  a  different  opinion, 
and  may  follow  it,  without  any  injury  to  his  conscience,  and 
without  violating  his  oath.  If  the  juror  is  to  determine  the 
law  for  himself,  without  any  standard  for  that  determination  out 
of  himself ,  his  oath  is  no  guaranty  to  the  public  or  the  accused, 
that  he  will  decide  according  to  the  law  of  the  land.  The 
provision  now  before  us  supposes  that  the  juror  is  to  have  an 
opinion  of  his  own  upon  the  law,  and  that  he  is  to  act  upon 
it,  when  he  sees  fit;  or,  in  other  words,  that  he  is  to  determine 
what  the  law  is,  without  any  standard  of  determination  out 
of  himself.  This,  I  affirm,  abolishes  the  sanction  of  the  juror's 
oath,  so  far  as  there  is  any  matter  of  law  involved  in  the  issue. 
I  am  more  and  more  persuaded  that  this  objection  is  a 
true  one,  the  more  I  examine  this  subject,  and  that  it  ought 
to  be  decisive  of  the  impropriety  of  adopting  the  proposition 
of  the  Convention.  Let  the  reader  consider,  for  one  moment, 
of  what  vast  consequence  it  is,  that  the  determination  of  the 
question  of  guilt  or  innocence  of  crime  should  be  made  under 
some  sanction,  which  will  reach  the  consciences  of  those 
who  are  to  determine  it.  Innocence  has  no  other  protection, 
guilt  has  no  other  certainty  of  punishment,  than  what  is 
afforded  by  the  sanctions  which  bring  the  conscience  of  the 
tribunal  into  activity,  and  cause  it  to  be  violated  by  a  wrong 
decision  knowingly  made.  We  endeavor  to  reach  the  con- 
science of  a  juror  by  his  oath ;  and  in  general  we  do  reach  it, 
and  bring  it  into  its  proper  relations  with  his  understanding. 
He  is  required  to  make  a  solemn  promise  before  God,  and  by 
a  direct  appeal  to  the  Deity,  that  he  will  determine  the  issue 
"  according  to  the  law  and  the  evidence  given  him."  This  is  no 
mere  ceremony.  It  is  a  direct  invocation  to  conscience,  to  do 
its  appropriate  office,  under  the  most  solemn  and  searching  of 


JURIES    JUDGES    OF    THE    LAW.  71 

all  religious  sanctions.  There  can  be  no  doubt  that  it  is  effec- 
tual, in  the  vast  majority  of  instances,  in  every  Christian 
community.  The  common  language  that  is  constantly  heard 
at  the  bar,  in  the  mouths  of  advocates,  in  which  the  oaths  of 
the  jury  are  invoked,  proves  that  the  efficacy  of  these  oaths  is 
well  understood  by  that  class  of  men  whose  business  it  is  to 
study  the  minds  of  jurors,  and  to  understand  the  motives, 
principles,  and  feelings  that  actuate  them.  That  principle,  to 
which  the  advocate,  in  the  highest  flight  of  his  impassioned 
address,  makes  his  final  and  strongest  appeal,  must  be  an  oper- 
ative and  influential  one,  in  the  minds  of  jurymen.  No  man 
would  willingly  submit  to  be  tried  by  an  unsworn  jury,  and 
no  government  ought  to  submit  its  accusations  of  crime  to  a 
tribunal  which  does  not  act  under  this  sanction. 

But  it  is  obvious  that,  whatever  form  of  oath  is  resorted  to, 
the  conscience  of  the  juror  is  not  brought  into  the  act  of 
decision,  if  he  is  so  placed  as  to  be  able  to  make  a  wrong 
decision  without  knowing  that  it  is  wrong.  It  is  the  wrong 
decision  knowingly  made,  that  violates  the  conscience;  and  if 
the  knowledge  that  it  is  wrong  be  wanting,  conscience  is  as 
passive  as  if  it  formed  no  part  of  the  moral  being,  whose  men- 
tal faculties  are  employed  in  the  act  of  making  the  decision. 
Now,  in  nine  cases  out  of  ten,  it  is  impossible  for  a  juror,  who 
is  made  the  judge  of  the  law,  with  a  right  to  disregard  the 
instructions  of  the  court,  to  know  whether  his  own  view  of 
the  law  is  correct  or  not.  When  the  witnesses  tell  him  facts, 
he  knows,  if  he  believes  what  they  say,  what  will  be  a  correct 
and  what  an  incorrect  decision,  so  far  as  the  facts  are  con- 
cerned. He  is  not  at  liberty  to  vary  those  facts,  or  to  depart 
from  them ;  and  if  he  does,  he  knows  that  he  decides  wrong- 
fully. But  when  the  court  tells  him  what  the  law  is,  which 
makes  those  facts  a  particular  crime,  and  at  the  same  time 
tells  him  that  he  has  a  right  to  take  a  different  view  of  the 
law,  if  he  sees  fit,  he  does  not  knowingly  decide  wrong,  how- 
ever wrong  his  decision  may  be,  so  far  as  the  law  is  concerned, 
because  he  has  no  means,  out  of  himself,  by  which  to  deter- 
mine what  is  right  and  what  is  wrong.  Hence,  I  say,  his  con- 
science is  not  appealed  to  at  all,  in  that  part  of  the  case  which 
depends  upon  the  law,  and  the  accused  may  be  acquitted  or 


72  JURIES  JUDGES    OF    THE    LAW. 

convicted  without  the  intervention  of  the  moral  sense  of  the 
juror  in  the  act  of  determination. 

Apart,  therefore,  from  all  consideration  of  the  fitness  of  ju- 
rors to  determine  questions  of  law,  —  a  consideration  which  I 
am  willing  to  waive,  except  so  far  as  it  bears  upon  the  ques- 
tion of  their  being  able  to  know  when  they  decide  wrongfully, 
—  I  maintain  that  a  constitutional  provision,  which  removes 
or  even  weakens  the  sanctions  of  a  juror's  oath,  would  be  a 
change  very  unfit  for  an  enlightened,  moral,  and  religious 
people  to  make ;  and  I  submit  to  all  reflecting  men,  that 
when  the  juror  has  a  right  to  disregard  the  instructions  of  the 
court,  and  to  determine  the  law  of  a  case  for  himself,  his  oath 
does  not  reach  his  conscience  for  any  thing  but  the  facts  de- 
tailed to  him  by  the  witnesses.  He  may  hold  the  law  to  be 
any  thing  that  he  pleases,  and  acquit  or  convict  accordingly, 
without  the  least  violence  to  his  moral  nature. 

I  know  not  what  is  to  take  the  place  of  that  fear  of  God, 
under  which,  as  an  ever-present  sanction,  justice  has  always 
been  administered  in  countries  governed  by  the  common  law. 
I  shrink  from  whatever  tends  to  banish  it  out  of  any  tribunals, 
as  from  a  thing  hostile  to  the  great  interests  of  civilization. 
There  can  be  no  doubt,  that,  since  the  spread  of  Christianity 
among  men,  t>oth  criminal  justice  and  civil  justice  have  been 
administered  with  vastly  greater  purity  than  they  were  before  ; 
and  that  purity  has  increased,just  in  proportion  as  the  different 
systems  of  jurisprudence  have  given  directness  and  force  to 
those  religious  sanctions,  which  preserve  the  mind  of  man  in 
its  true  relations  of  responsibility  to  God.  No  amount  of 
general  intelligence  or  general  integrity  can  perform  the  office 
of  that  direct  appeal  to  the  moral  sense  and  the  religious  na- 
ture, which  is  made  by  a  juror's  oath.  Justice,  administered 
without  the  active  and  restraining  presence  of  conscience, 
would  be  a  curse  to  any  people  on  earth. 

It  certainly  is  not  so  administered  now,  among  us.  When 
the  jury  are  sworn  to  render  a  true  verdict,  "  according  to  the 
law  and  the  evidence  given  them,"  they  receive  the  law  from 
a  judge,  whose  official  oath  binds  him  to  state  it  truly,  accord- 
ing to  the  best  of  his  ability  and  understanding,  and  who  acts 
also  under  the  penalty  of  an  impeachment,  if  he  states  it 


JURIES    JUDGES    OF    THE    LAW.  73 

knowingly  wrong.  The  oath  of  the  jury,  which  binds  them 
to  return  a  verdict  in  accordance  with  the  law  given  to  them 
by  the  court,  insures  the  action  of  their  consciences  upon  the 
law  of  the  case,  as  well  as  upon  the  facts.  If  the  law  is  not 
correctly  stated  by  the  court,  and  the  accused  is  convicted,  a 
bill  of  exceptions  enables  him  to  have  it  reviewed  and  reex- 
amined, under  all  the  lights  that  can  be  brought  to  bear  upon 
the  question.  For  this  system,  in  which,  from  the  beginning 
to  the  end  of  the  process,  every  part  of  the  tribunal  acts  un- 
der the  most  solemn  religious  responsibilities,  the  Convention 
have  proposed  to  substitute  a  power  in  the  jury  to  act  upon 
their  own  opinion  of  the  law,  which  no  oath  or  adjuration 
can  bring  within  the  domain  of  conscience. 

Phocion. 


No.   XI. 

JURIES  JUDGES  OF  THE  LAW. 

Since  I  last  addressed  you  on  the  subject  of  the  proposed 
Constitution,  intelligent  men,  in  all  parts  of  the  State,  have 
devoted  themselves  to  the  examination  and  exhibition  of  its 
deformities,  and  there  is  now  a  reasonable  prospect  of  its  be- 
ing rejected  by  your  votes.  Perhaps  further  discussion  will 
have  little  influence  on  the  result.  I  have,  however,  been 
urged  to  complete  the  papers  commenced  nearly  three  months 
since,  that  they  may  form  hereafter  a  body  of  arguments  and 
opinions  upon  questions,  that  will  always  be  of  public  impor- 
tance, and  that  they  may  remain  part  of  the  history  of  this 
great  controversy. 

The  last  topic  to  which  I  had  occasion  to  call  your  atten- 
tion was  the  Third  Proposition  submitted  by  the  Convention, 
which  undertakes  to  make  juries  the  final  judges  of  the  law. 
I  have  shown,  that  this  proposition  cannot  be  adopted  as  part 
of  the  Constitution  of  this  Commonwealth  without  rendering 
7 


74  JURIES   JUDGES    OF    THE    LAW. 

nugatory  the  sanction  of  the  jurors'  oath.  It  remains  for  me 
to  show,  that  it  cannot  be  adopted  with  safety  to  accused  per- 
sons, and  that  no  man  can  be  sure  of  a  fair  trial,  according 
to  the  law  of  the  land,  under  the  operation  of  its  provisions. 

The  object  of  the  provision  doubtless  was,  to  give  addi- 
tional protection  to  the  accused.  It  will  certainly  fail  to  pro- 
duce this  effect.  Juries  are  often  quite  as  eager  to  convict  as 
to  acquit ;  and  it  sometimes  requires  all  the  authority  of  the 
bench  to  show  a  jury,  that,  whatever  the  moral  guilt  of  the 
party  on  trial  may  be,  he  is  not  guilty,  according  to  law,  of 
the  crime  charged,  and  to  induce  them  to  act  accordingly. 
Nothing  can  be  more  important  to  the  welfare  of  society, 
than  to  have  men  convicted  and  punished  for  crimes,  accord- 
ing to  law.  A  conviction  against  the  law  is  a  hundred-fold 
more  pernicious  in  its  consequences,  than  an  acquittal  in  the 
face  of  the  facts.  Now  this  Third  Proposition  of  the  Conven- 
tion is  so  absurdly  and  awkwardly  framed,  and  contains  such 
contradictory  provisions,  that,  after  it  has  been  adopted  as 
part  of  the  Constitution,  it  will  be  utterly  impossible  to  ob- 
tain any  remedy  or  relief  for  a  man  who  may  be  convicted  by 
a  jury  against  the  law  of  the  land,  except  through  executive 
pardon.     The  proposed  amendment  is  as  follows  :  — 

"Proposition  Number  Three.  —  In  all  trials  for  criminal  offences, 
the  jury,  after  having  received  the  instruction  of  the  court,  shall  have 
the  right,  in  their  verdict  of  guihy  or  not  guilty,  to  determine  the  law 
and  the  facts  of  the  case ;  but  it  shall  be  the  duty  of  the  court  to  super- 
intend the  course  of  the  trials,  to  decide  upon  the  admission  and  rejec- 
tion of  evidence,  and  upon  all  questions  of  law  raised  during  the  tri- 
als, and  upon  all  collateral  and  incidental  proceedings  ;  and  also  to 
allow  bills  of  exceptions.  And  the  court  may  grant  a  new  trial  in 
case  of  conviction." 

Here,  then,  it  is  provided,  that  the  judge  shall  preside  at 
the  trial,  and  shall  decide  the  law,  —  that  is,  I  suppose,  shall 
rule  upon  it  to  the  jury ;  but  that,  after  they  have  received  the 
instruction  of  the  court,  the  jury  shall  determine  the  law  (as 
well  as  the  facts  of  the  case),  —  that  is  to  say,  shall ^wa%  de- 
cide what  is  law  and  what  is  not.  If  they  decide  wrongfully, 
or,  in  other  words,  if,  upon  the  facts  of  the  case,  they  convict 


JURIES    JUDGES    OF    THE    LAW.  15 

the  accused  of  the  crime  charged,  when  in  point  of  law  he  is 
not  guilty  of  that  crime,  there  can  be  no  remedy  for  him  on 
earth,  except  to  appeal  to  the  interference  of  the  Executive. 

The  direction  that  the  court  shall  "  allow  bills  of  excep- 
tions," can  have  no  application  to  such  a  case  as  this.  Bills 
of  exceptions  are  allowed  for  the  purpose  of  bringing  again 
under  discussion,  after  the  trial  has  terminated,  the  rulings  of 
the  court  upon  matters  of  law.  But,  when  the  court  has 
ruled  the  law  correctly,  and  the  jury,  exercising  the  constitu- 
tional right  which  this  provision  means  to  give  them,  have 
held  the  law  mcorrectly,  there  can  be  no  bill  of  exceptions, 
for  there  is  nothing  to  which  it  can  be  applied.  Nor  will  the 
provision,  that  the  court  may  grant  a  new  trial  in  case  of 
conviction,  be  of  any  avail,  when  the  jury  have  decided  the 
law  incorrectly,  for  two  reasons.  First,  because  the  court 
cannot  know  that  a  wrong  view  of  the  law  was  the  ground 
of  the  verdict ;  and  secondly,  because  the  jury,  being  made 
final  judges  of  the  law  after  they  have  received  the  instruc- 
tions of  the  court,  the  clause  which  empowers  the  court  to 
grant  new  trials  must  necessarily  be  confined  in  its  construc- 
tion to  those  cases  where  the  conviction  is  against  the  weight 
of  the  evidence.  It  cannot  include  cases  where  the  allegation 
is,  that  the  jury  have  misconstrued  or  misapplied  the  law  to 
the  facts,  because  the  very  section  of  the  Constitution,  to 
which  this  clause  is  appended,  makes  the  jury  final  judges  of 
the  law. 

Now  it  may  be  assumed,  with  entire  certainty,  that  in  nine 
cases  out  of  ten,  in  which  the  jury  should  undertake  to  exer- 
cise their  prerogative  of  judging  finally  of  the  law,  they  would 
judge  wrong  ;  and  out  of  these  nine  cases,  in  every  one  in 
which  there  should  be  a  conviction,  there  would  be  no  remedy 
whatever  for  the  accused,  short  of  the  Governor's  pardon.  Let 
me  invite  your  careful  scrutiny  of  this  difficulty. 

Phocion. 


76  AMENDMENT    OF    CONSTITUTIONS. 

No.  xir. 

THE  AMENDMENT  OF  CONSTITUTIONS. 

The  discussion  which  I  propose  to  terminate  in  this  paper 
was  commenced  before  any  political  party  in  the  State  had 
determined  to  oppose  the  Constitution  prepared  by  the  late 
Convention.  The  objections  which  I  have  urged  against  it 
have  therefore  derived  none  of  their  force  from  the  policy  of 
any  political  combinations  among  us. 

Having  discussed  the  principal  and  most  objectionable 
changes  which  you  have  been  asked  to  make  in  the  existing 
Constitution,  I  have  now  to  consider  the  broader  question  of 
your  competency  to  alter  the  Constitution  of  the  State  in  the 
mode  proposed.  However  little  this  question  has  been  consid- 
ered, it  is  one  of  transcendent  importance;  and  looking  forward, 
as  I  do,  with  confidence,  to  your  rejection  of  these  changes,  it 
seems  to  me  eminently  desirable,  that  the  true  principles  of 
our  American  liberty  should  be  stated  at  the  present  time, 
because  that  rejection  will  be  likely  to  be  followed  by  a  return 
to  those  principles.  Had  I  been  offered  a  seat  in  the  late 
Convention,  I  should  certainly  have  declined  it,  because  I 
hold  the  whole  proceeding  to  be  an  act  of  revolution,  and  I 
can  see  no  necessity  for  overturning  the  present  government 
of  the  State  by  a  resort  to  revolutionary  power. 

The  Revolution  of  1776  established  certain  great  principles 
as  the  fundamental  doctrines  of  American  civil  liberty.  The 
first  of  these  principles  was,  that  the  people,  and  not  an  ex- 
ternal authority,  are  the  source  of  all  political  power.  Our 
ancestors  threw  off  the  authority  of  the  crown  of  Great 
Britain,  and  substituted  for  it  their  own.  It  follows,  as  a 
necessary  corollary  from  the  right  of  self-government,  that 
those  who  are  to  govern  themselves  have  a  right  to  alter  their 
government  from  time  to  time.  But  this  idea  of  a  govern- 
ment of  the  people,  acting  through  the  will  and  voice  of  a 
majority,  was  not  new.  The  ancient  democracies  exhibited  it ; 
and  its  entire  theory,  with  all  the  distinctions  between  this 


AMENDMENT    OF    CONSTITUTIONS.  7? 

and  other  forms  of  government,  is  as  old  as  Aristotle.  But 
what  was  new,  and  peculiarly  American,  was  the  second 
fundamental  principle,  which  was  brought  into  existence,  and 
practically  established,  at  the  period  of  the  Revolution  ;  viz. 
that  the  people  may  limit  their  own  power  for  the  good 
of  all,  and  that  such  limitations  shall  thereafter  be  respect- 
ed, for  the  sake  of  the  rights  of  the  minority.  The  capaci- 
ty of  the  people  to  limit  their  own  power  is  necessarily 
included  in  their  right  to  establish  and  alter  government. 
Those  who  have  originally  unlimited  control  over  a  subject, 
may  covenant  in  what  way  they  will  exercise  that  control, 
and  may  restrain  themselves  as  to  some  modes,  reserving  to 
themselves  others.  Now,  the  great  limitation  established  by 
the  people  of  this  Commonwealth  at  the  Revolution  was,  that 
there  should  be  a  written  constitution,  or  permanent  funda- 
mental law,  and  an  independent  judiciary  to  expound  it.  The 
object  of  this  constitution,  or  permanent  law,  was,  to  set 
bounds  to  the  action  of  the  majority,  by  restraining  their  legis- 
lative power  within  certain  limits ;  and  the  Judiciary  was  es- 
tablished, as  the  umpire,  to  determine  when  those  limits  are 
transcended.  As  the  idea  of  limiting  the  power  of  a  self- 
governing  people  was  a  purely  novel  and  American  idea ;  so, 
too,  the  particular  limitation  resorted  to  was  wholly  new  and 
peculiar  to  ourselves.  Its  purpose  was,  to  establish  a  republi- 
can and  representative  government,  in  contradistinction  to  a 
mere  democracy,  in  which  there  is  no  permanent  law,  and  no 
law  of  any  kind,  save  the  expressed  will  of  the  majority  of 
the  day. 

It  would  seem  to  be  scarcely  necessary,  after  all  our  ex- 
perience in  the  principles  of  our  institutions,  to  undertake  to 
prove  that  the  people  can  and  do  limit  their  own  power. 
Every  thing  in  government,  with  us,  proceeds  upon  this  as 
a  settled  principle.  In  the  first  place,  all  restrictions  as  to 
suffrage  prove  it.  No  one  proposes  that  the  whole  mass  of 
the  inhabitants  shall  govern.  The  whole  mass  have  the 
physical  power  to  govern,  and  a  revolutionary  right  to  do 
so ;  but,  in  the  origin  of  the  government,  the  whole  mass 
have  given  their  consent  to  certain  limitations  which  confine 
this  power,  in  a  constitutional  sense,  to  persons  of  certain 


78  AMENDMENT    OF    CONSTITUTIONS. 

qualifications.  In  the  second  place,  the  existence  of  constitu- 
tions proves  it.  Aside  from  the  provisions  of  a  written  con- 
stitution, and  acting  in  disregard  of  them,  the  whole  mass  of 
the  people,  including  men,  women,  and  children,  have  the 
revolutionary  power  to  overturn  the  established  order  of  things 
at  any  time.  But  in  and  by  a  written  constitution,  they  have 
agreed  that  this  power  shall  not  be  resorted  to,  but  that  it 
shall  be  limited  both  as  to  the  forms  or  modes  in  which  it  is 
to  be  exercised,  and  the  individuals  who  are  to  exercise  it. 

It  was,  then,  to  prevent  a  resort  to  the  mere  power  of  num- 
bers at  the  expense  of  the  minority,  and  to  establish  a  rule  of 
civil  polity,  that  should  be  permanent,  that  written  constitu- 
tions were  devised  and  adopted.  If,  therefore,  a  constitution 
is  of  itself  a  limitation  of  the  original  power  of  the  people  to 
declare,  from  time  to  time,  what  shall  be  the  law,  it  follows 
that  all  the  provisions  of  such  a  constitution  are  equally  to 
be  regarded  as  limitations  of  the  same  power.  So  that,  if  the 
people  have,  in  their  constitution,  pointed  out  and  prescribed 
a  mode  of  altering  or  amending  it,  a  resort  to  any  other  mode 
is  a  resort  to  revolution,  and  a  departure  from  the  constitu- 
tional limitations  of  their  own  power,  which  they  themselves 
have  established.  By  such  a  course  of  action,  the  constitution 
comes  to  be  no  more  permanent  than  a  statute,  which  shifting 
majorities  may  alter  or  repeal  at  any  time. 

The  political  history  of  Massachusetts  affords  no  warrant 
for  the  doctrine,  that  the  present  Constitution  is  capable  of 
being  amended  or  altered  by  any  other  course  of  action,  than 
that  embraced  in  one  of  its  provisions.  The  Constitution  of 
1780  was  adopted  by,  and  established  for,  the  people  living 
within  the  present  limits  of  Massachusetts,  or  within  the 
limits  of  what  is  now  the  State  of  Maine.  When  that  por- 
tion of  the  people  inhabiting  the  latter  territory  separated 
themselves  from  us,  with  our  consent,  certain  amendments  of 
the  old  Constitution  became  necessary  for  the  people  remain- 
ing in  the  limits  of  the  present  State  of  Massachusetts.  The 
Convention  of  1820  was  called  for  this  purpose ;  but  it  estab- 
lished no  precedent  for  future  conventions.  The  Constitution 
of  1820  was  framed  and  established  by  the  people  of  Massa- 
chusetts, after  an  integral   portion   of  them  had   separated 


AMENDMENT    OF    CONSTITUTIONS.  79 

themselves  from  the  rest,  leaving  those  who  remained  to 
modify  and  adapt  the  old  government  to  their  new  circum- 
stances. This  people,  acting  through  a  Convention, — which 
was  the  only  mode  by  which,  in  their  situation,  amendments 
could  be  proposed  and  submitted  for  popular  approval  and 
adoption,  —  established  nine  articles  of  amendment  to  the  old 
Constitution.  The  ninth  of  these  articles  of  amendment  con- 
tains a  limitation  of  their  own  power,  which  the  people  then 
saw  fit  to  impose  upon  themselves.  It  prescribed  a  mode  in 
which  future  amendments  should  be  made  ;  viz.,  that  they 
should  be  prepared,  and  voted  by  a  majority  of  one  branch, 
and  by  two  thirds  of  the  other  branch,  of  two  successive  legis- 
latures, and  should  then  be  submitted  to  the  people  for  ratifi- 
cation by  a  majority  of  the  qualified  voters. 

It  is  perfectly  clear,  therefore,  that  the  present  Constitution 
has  granted  no  power  to  the  Legislature  to  delegate  to  any 
other  body  the  authority  to  prepare  and  propose  amendments, 
and  consequently  has  given  it  no  power  to  call  conventions 
for  this  purpose.  On  the  contrary,  having  prescribed  the 
course  and  duty  of  the  Legislature  in  the  preparation  and 
submission  of  amendments,  the  argument  is  unanswerable, 
that  this  provision  of  the  Constitution  exhausts  all  the  power 
which  the  people  intended  to  confer  upon  the  Legislature. 
So  that,  upon  all  just  principles  of  reasoning  and  construc- 
tion, the  power  to  call  conventions,  and  to  authorize  them  to 
prepare  amendments,  and  provide  for  their  adoption  by  the 
people,  must  be  deemed  to  have  been  withheld,  as  much  as  if 
it  had  been  expressly  prohibited. 

I  regard  the  act  of  the  Legislature,  therefore,  calling  the 
late  Convention,  and  all  proceedings  under  it,  as  entirely  un- 
authorized and  unlawful.  The  adoption  of  the  Constitution 
prepared  and  voted  on  pursuant  to  this  act,  would  be  a  revo- 
lution ;  —  peaceable  and  orderly,  in  one  sense,  but  a  mere  act 
of  physical  force,  which  abrogates  the  constitutional  limitation 
of  their  own  power,  heretofore  solemnly  established  by  the 
people.  Such  a  proceeding  renders  the  Constitution  of  the 
State  the  mere  expression  of  the  temporary  will  of  the  ma- 
jority of  to-day,  to  be  set  aside  by  just  such  another  expression 
on  any  other  day.     No  one  denies  the  physical  power  of  the 


80  AMENDMENT    OF    CONSTITUTIONS. 

people  so  to  act,  but  it  is  entirely  inconsistent  with  the  prin- 
ciples of  our  constitutional  liberty,  and,  if  it  passes  into  a 
precedent,  a  majority  may  change  the  Constitution  every 
year,  in  any  mode  that  party  leaders  may  devise. 

What  is  to  restrain  this  physical  power  ?  I  answer,  a  re- 
gard for  principle;  a  conviction,  on  the  part  of  the  people, 
that  a  steady  adherence  to  the  self-imposed  limitations  of  their 
own  power,  is  both  a  duty  and  a  high  policy ;  a  duty,  be- 
cause justice  to  all  requires  it,  and  a  high  policy,  because  their 
own  interest  demands  it.  They  have  the  physical  power  to 
pull  down  any  man's  house,  at  any  moment,  and  to  say  that 
he  shall  have  no  redress.  But  justice  would  be  violated,  and 
their  own  turn  may  come  next,  when  the  majority,  which  sees 
fit  to  act  only  upon  the  naked  physical  power  to  do  a  thing, 
becomes  shifted  from  the  individuals  who  have  so  acted  to- 
day, and  the  same  thing  is  repeated  by  others  to-morrow. 

Phocion. 


THE 


LETTERS  OF  SILAS  STANDFAST, 


TO 


HIS    FRIEND    JOTHAM. 


GEORGE   STILLMAN   HILLARD. 


FIEST  PUBLISHED  IN  THE  BOSTON  COTJEIER    AND  ATLAS, 
IN  OCTOBER  AND  NOVEMBER,  1853. 


THE 


LETTERS  OF  SILAS  STANDFAST, 


HIS   FRIEND   JOTHAM. 


No.  L 

My  dear  Jotham,  —  You  are  one  of  the  best  farmers,  but 
by  no  means  one  of  the  best  politicians  in  the  county  of  Wor- 
cester. On  a  question  of  turnips  or  subsoil  ploughing  I  hold 
you  to  be  a  good  authority  ;  but  when  it  comes  to  politics  and 
government,  your  judgment  is  not  much  better  than  mine 
would  be  in  the  purchase  of  a  yoke  of  oxen.  The  truth  is, 
my  dear  Jotham,  that  you  were  not  wiser  than  the  rest  of  us 
when  you  were  born,  nor  have  you  eaten  a  great  deal  of  the 
stuff  on  which  wise  men  are  brought  up.  You  have  not  been 
favorably  placed  in  this  respect  You  have  been  for  many 
years  a  big  man  in  a  little  town  :  you  have  been  a  selectman, 
and  a  moderator  in  town  meetings  ;  you  are  a  justice  of  the 
peace  and  a  fore-handed  man  ;  you  have  had  nobody  to  con- 
tradict you,  to  rake  after  your  tongue  and  pick  up  your  words 
and  fling  them  at  you  again ;  the  old  men  consult  you,  and 
the  boys  take  off"  their  hats  to  you.  You  have  not  had  the 
nonsense  knocked  out  of  you,  as  we  have  that  live  in  cities  and 
have  to  fight  our  way  through  a  crowd,  and  scramble  for  all 
we  get.  If  I  did  not  come  and  see  you  once  a  year,  and  trim 
you  off  and  curry  you  down  a  little,  no  tongue  can  tell  upon 
what  shores  you  would  have  drifted.  You  might  have  been 
a  Millerite,  and  slept  with  an  ascension-robe  at  the  head  of 


84 


POLITICAL    CREDULITY. 


your  bed.  You  might  have  had  faith  in  the  inspiration  of 
Andrew  Jackson  Davis.  You  might  have  believed  that  saints 
and  angels  amuse  themselves  with  table-turning  and  spirit- 
rappings,  and  that  any  man  may  have  a  half-hours  chat  with 
the  ghost  of  Ethan  Allen,  on  paying  a  dollar  to  Mrs.  Gullem. 
Certainly  nothing  is  too  much  to  predict  of  a  man  who  did 
believe  in  the  sincerity  of  Martin  Van  Buren's  conversion  to 
Antislavery  doctrines. 

You  enjoy  one  accidental  piece  of  good  luck.  For  so  hon- 
est a  man  as  you  are,  you  are,  in  one  point,  a  bit  of  an  impos- 
tor, because  you  look  so  much  wiser  than  you  are.  When  I 
commenced  the  practice  of  the  law,  a  face  like  yours  would 
have  been  worth  at  least  five  hundred  dollars  a  year  to  me. 
I  should  have  half  won  my  cause  before  I  had  begun  to  ad- 
dress the  jury.  Your  tombstone  gravity  of  manner,  your 
silence,  and  the  solemn  sententiousness  of  your  speech  when 
you  do  open  your  oracular  jaws,  have  given  you  a  reputation 
for  wisdom,  to  which  you  have  as  little  claim,  as  a  crow  has  to 
be  called  a  respectable  bird  because  he  wears  a  black  coat. 

I  have  noticed  that  the  grain  of  your  mind  has  been  running 
to  knots  ever  since  you  settled  your  new  minister,  the  Rev. 
Uplifted  Sleek.  He  is  doubtless  a  good  man,  but  his  kingdom 
is  still  something  of  this  world ;  and  I  think  it  would  be  better 
if  he  wasted  less  of  his  energies  upon  terrestrial  objects.  He 
is  a  youth,  just  hatched  out  of  a  divinity  school,  running  round 
with  the  shell  yet  on  his  head,  who  knows  about  as  much  of 
government,  practically,  and  the  difficulties  of  managing 
twenty-five  millions  of  human  beings,  as  you  do  about  play- 
ing upon  a  dulcimer ;  and  yet  there  is  not  a  question  of  pol- 
itics or  government  which  he  has  not  settled  entirely  to  his 
satisfaction.  It  would  be  a  real  comfort  to  see  a  man  who 
knows  as  much  as  he  thinks  he  does.  He  knows  that  the  Fu- 
gitive Slave  Law  is  unconstitutional,  and  does  not  want  more 
than  ten  minutes  to  prove  it  to  any  candid  person  whose  mind 
has  not  been  warped  by  those  shallow  sophists,  John  Marshall 
and  Joseph  Story.  He  knows  that  Daniel  Webster  sinned 
against  his  own  conscience  when  he  made  his  7th  of  March 
speech.  He  knows  that  this  country  can  be  governed  without 
any  compromises  on   the  subject  of  slavery ;  and  he  believes 


CLERICAL    POLITICIANS.  89 

that,  if  he  could  have  been  called  to  Washington  in  the  spring 
of  1850,  he  could  have  settled  all  the  questions  that  Congress 
had  before  them,  in  about  the  time  it  takes  him  to  write  a 
sermon. 

There  are  many  sucking  theologians  of  the  same  stamp  in 
the  old  Bay  State,  and  little  good  do  they  do  in  their  day  and 
generation,  —  with  book  knowledge  enough  to  make  them 
conceited,  and  ambition  enough  to  make  them  restless,  —  who 
are  in  fact  clerical  demagogues  and  Sunday  stump-speakers, 
—  who,  instead  of  reasoning  of  righteousness  and  judgment, 
are  ever  banging  away,  in  season  and  out  of  season,  upon  the 
Maine  Liquor  Law,  or  the  Fugitive  Slave  Law,  or  some  other 
matter  of  secular  controversy,  and  poisoning  the  Sabbath  with 
all  the  strife  and  bitterness  of  the  week.  When  I  have  heard 
such  a  shallow  popinjay  in  the  pulpit,  hurling  round  his  accu- 
sations and  denunciations,  and  waking  up  in  the  hearts  of  his 
people  the  evil  passions  which  it  was  his  duty  to  rebuke  and 
put  to  sleep,  I  have  sighed  for  the  good  old  days  of  Dr.  Dry- 
drone,  with  his  wig  and  his  knee-buckles,  who  would  preach 
you  ten  sermons  on  predestination  and  make  nothing  of  it. 

The  Rev.  Uplifted,  like  all  these  higher-law  men,  knows 
very  well  which  side  his  bread  is  buttered  on.  He  knows  who 
has  got  the  prettiest  daughters  in  his  parish,  and  whose  wife 
makes  the  best  apple-pies ;  and  I  rather  think  that  you  know 
it  too,  my  dear  Jotham.  I  can  see  the  twinkle  in  the  tail  of 
your  eye  as  you  read  these  words,  though  you  are  fifty  miles 
off.  It  is  my  private  opinion,  that  the  minister  scrapes  his  feet 
at  your  front  door  about  as  often  as  at  any  house  in  the  village. 
And  the  reverend  gentleman  has  contrived  to  get  the  length 
of  your  foot  better  than  any  shoemaker  ever  did.  I  will  tell 
you  how  he  has  done  it.  He  has  done  it  by  holding  his 
tongue  before  you,  much  as  he  talks  everywhere  else ;  by 
putting  you  up  to  talk  and  then  listening  to  you.  It  is  a  great 
art,  that  of  listening ;  and  Uplifted  understands  it  as  well  as 
any  man  I  ever  saw.  When  you  are  talking,  he  puts  on  an 
expression  of  deference,  of  acquiescence,  of  acknowledgment, 
which  is  beautiful  to  behold ;  and  you  think  him  a  man  of 
excellent  sense, because  he  contrives  to  satisfy  you  of  your  own. 

Coming  to  see  you  as  I  do,  at  regular  intervals,  I  can  mark 
9 


86 


FREE    SOIL    PARTY. 


the  influence  which  this  smooth-tongued  little  minister  has 
gained  over  you.  I  can  see  how  he  has  inoculated  you  with 
his  fanatical  and  fantastical  nonsense.  But  for  him,  I  do  not 
believe  that  you  would  ever  have  voted  for  Martin  Van  Buren 
and  joined  the  Free  Soilers,  or  the  Free  Democrats,  or  what- 
ever else  they  choose  to  call  themselves ;  for  they  have  as 
many  aliases  as  Stephen  Burroughs,  and  as  I  have  not  seen 
to-day's  Commonivealth^  I  am  not  certain  what  their  last  title 
is.  As  you  well  know,  I  tried  to  hold  you  back,  but  it  was  in 
vain  ;  you  broke  off,  hook  and  line,  bob  and  sinker;  and  since 
then,  we  have  agreed  to  differ  as  to  the  depth  of  John  P.  Hale, 
the  honesty  of  John  Van  Buren,  and  the  wisdom  of  Horace 
Mann. 

When  we  last  sat  under  the  shade  of  your  patriarchal  elms, 
we  talked  about  the  Constitutional  Convention  which  had 
then  just  closed  its  sessions,  and  of  the  precious  bantling 
which  was  the  result  of  their  three  months'  gestation.  I  was 
glad  to  find  that  there  were  some  things  in  that  document 
which  even  you  thought  not  altogether  wholesome  to  take. 
I  should  indeed  have  been  surprised  if  all  your  early  teaching 
and  inherited  convictions  had  been  so  far  rubbed  out  of  you, 
that  you  could  have  accepted  all  the  rash  and  mischievous 
innovations  of  those  bungling  political  journeymen.  I  left 
you  in  a  rather  hopeful  state  of  mind,  and  only  regretted  that 
my  sudden  call  to  town  prevented  my  discussing  with  you,  in 
full,  many  points  on  which  our  conversation  glanced.  You 
will  remember  that  I  promised  to  address  you  in  writing,  on 
this  subject,  and  to  put  down  on  paper  some  of  the  views 
w^hich  I  had  only  time  to  touch  upon  when  we  were  together. 
I  mean  now  to  redeem  that  pledge.  I  will  point  out  in  plain 
language  some  of  the  objections  which  I  have  to  this  amended 
Constitution,  so  called. 

I  will  give  you  some  reasons  why  I  think  that  you,  and 
other  men  like  you,  —  good  men,  with  families  growing  up 
around  them,  and  snug  little  properties  which  a  political  con- 
stitution may  make  either  greater  or  less,  as  the  case  may  be, 
—  should  vote  against  it.  And  though  the  effort  may  cost  me 
more  time  than  I  can  well  afford,  yet,  on  the  whole,  I  do  not 
regret  it,  since  it  may  be  the  better  for  you  to  have  my  views, 


CONSTITUTION    OF    1780.  87 

such  as  they  are,  in  black  and  white.  A  letter  which  you 
can  read  and  re-read  and  meditate  upon,  is  better  than  a  long 
talk,  in  which  much  is  heard  and  little  remembered.  Spoken 
words  are  like  the  music  of  a  bobolink,  which  rings,  and 
swells,  and  gushes,  till  the  whole  meadow  seems  to  be  break- 
ing into  voice,  and  then  passes  off  and  cannot  be  recalled ;  but 
written  words  are  like  one  of  the  songs  which  your  little  Mary 
sings  to  you,  and  which  she  can  sing  again  and  again,  and  lay 
down  and  take  up  and  find  still  the  same.  Long  may  that 
sweet  voice  be  heard  on  earth,  and  charm  your  ear  always, 
and  mine  sometimes,  with  strains  which  are  a  foretaste  of 
that  blessed  land  in  which  there  are  no  laws  to  be  broken,  and 
no  constitutions  to  be  amended. 

Silas  Standfast. 


No.  11. 

My  dear  Jotham, —  You  said  in  our  last  conversation,  that 
you  thought  the  new  Constitution,  although  not  perfect,  was, 
on  the  whole,  better  than  the  old  one.  I  do  not  think  so  ;  'and 
yet  I  am  not  so  bigoted  a  conservative  as  not  to  be  willing  to 
admit  that  some  few  of  the  proposed  changes  are  good,  and 
some  few  neither  good  nor  bad.  But  the  difficulty  is,  that, 
by  the  unwarrantable  and  unprincipled  action  of  a  majority 
of  the  Convention,  we  are  not  allowed  to  pick  and  choose, 
■ —  to  select  what  we  like,  and  throw  away  what  we  do  not 
like,  —  but  we  must  take  all  or  reject  all.  This  was  the  last 
act — the  dying  kick  —  of  the  Convention  ;  but,  though  last  in 
time,  I  put  it  first  in  order;  because  of  its  importance,  and 
because  it  shows,  most  decisively  and  conclusively,  what  were 
the  motives  of  that  body,  and  what  was  their  real  purpose 
and  object. 

We  have  been  living  seventy  years  and  more  under  a  Con- 
stitution. That  Constitution  was  framed  in  1780.  The  men 
who  drew  it  up  were  eminent  for  their  wisdom,  their  virtue, 


88  CONVENTION    OF    1820. 

and  their  patriotism ;  and  the  Constitution  of  Massachusetts 
is  a  reflection  and  embodiment  of  their  elevated  qualities. 
Under  it  we  lived  and  thrived.  We  had  our  share  of  trials 
and  dangers,  but  we  got  happily  through  them.  As  children 
must  have  the  measles  and  the  whooping-cough,  so  we  had 
the  Shays  rebellion,  the  Oxford  war,  the  embargo,  and  other 
troubles.  But  we  had  a  good  Constitution  to  start  with,  and 
so  we  kept  growing  stouter  and  sturdier  in  spite  of  it  all.  No 
one  can  say,  that  from  1780  to  1820  we  were  not  a  happy  and 
a  prosperous  community;  as  much  so  as  any  on  the  face  of 
the  earth.  In  the  latter  year,  an  important  event  took  place 
in  our  domestic  history.  The  District  of  Maine,  which  had 
before  made  one  family  with  us,  felt  that  she  was  old  enough 
and  strong  enough  to  take  care  of  herself ;  and  so  we  parted, 
and  she  moved  off  and  set  up  housekeeping  on  her  own  ac- 
count. 

This  change  in  our  relations  made  it  desirable  that  there 
should  be  some  modifications  in  the  instrument  under  which 
the  two  States  had  previously  lived.  So,  in  the  autumn  of 
1820,  with  the  general  assent  of  men  of  all  parties,  there  as- 
sembled in  Boston  a  Convention  of  delegates  for  the  purpose 
of  revising  the  Constitution  of  Massachusetts.  That  Con- 
vention was  a  body  not  inferior  in  wisdom  and  worth  to  the 
one  which  had  framed  the  Constitution.  Among  the  delegates 
—  to  speak  of  the  dead  only  —  were  John  Adams,  Daniel 
Webster,  William  Prescott,  Isaac  Parker,  Joseph  Story,  Lev- 
erett  Saltonstall,  and  John  Davis, —  men  admirable  for  their 
strong  sense  and  their  political  sagacity,  and  not  less  admira- 
ble for  their  political  integrity  and  unselfish  patriotism.  And 
the  rank  and  file  were  of  the  same  spirit  as  the  oflicers.  You 
might  have  taken  any  fifty  names  in  alphabetical  order,  and 
devolved  upon  them  the  work  intrusted  to  the  whole  body. 
Especially,  the  Convention  of  1820  was  not  a  partisan  body. 
No  man  among  them  considered  whether  the  result  of  their 
deliberations  was  likely  to  make  John  Brooks  or  William 
Eustis  Governor  of  Massachusetts.  I  do  not  mean  to  say 
that  they  had  not  party  convictions  and  party  prepossessions, 
but  they  did  not  set  them  in  the  front  of  their  motives.  They 
came  to   their  work   with  a  singleness  of  purpose  to  make 


CONVENTION    OF   1853.  89 

such  changes  as  the  good  of  the  State  and  the  public  wants 
required,  and  no  more.  They  sat  in  deliberation  two  months. 
Their  discussions  were  marked  by  ability,  pertinency,  and  de- 
corum. The  result  of  their  labors  was  submitted  to  the  de- 
cision of  the  people  in  fourteen  distinct  propositions,  each  of 
which  embraced  a  separate  subject,  so  that  the  sense  of  the 
voters  might  be  fairly  ascertained  upon  each ;  and  of  these, 
nine  were  accepted,  and  five  were  rejected.  Thus,  whatever 
differences  of  opinion  there  might  have  been  as  to  this  or  that 
particular  proposition,  everybody  felt  that  the  people  had  been 
Ao«e5%  dealt  with  ;  that  no  ^ncA:s  had  been  played  upon  them; 
that  the  public  sentiment  had  been  fairly  ascertained ;  and 
there  was  consequently  a  general  acquiescence  in  the  result. 

Now,  my  dear  Jotham,  I  am  not  going  to  open  to  you  my 
mind,  as  to  the  origin  of  the  recent  Constitutional  Convention, 
and  the  real  motives  of  those  who  got  it  up ;  nor  am  I  going 
to  tell  you,  —  what  1  have  so  often  told  you  before,  —  that,  in 
my  opinion,  the  people  of  Massachusetts  no  more  needed  a 
Constitutional  Convention  than  an  ox  needs  a  third  horn. 
Upon  these  points  we  have  agreed  to  differ.  You  have  made 
up  your  fagots,  and  I  have  made  up  mine  :  you  prefer  your 
way  of  tying  them,  and  I  prefer  mine.  So  let  that  pass.  It 
is  very  certain  that  out  of  one  hundred  and  eighty-two  thou- 
sand voters,  sixty-six  thousand  did  vote,  in  November,  1852, 
that  it  was  expedient  that  a  Convention  should  assemble  in 
Boston,  in  May,  1853,  for  the  revision  of  the  Constitution  of 
Massachusetts.  The  Convention  accordingly  did  assemble, 
then  and  there.  They  remained  in  session  three  mortal 
months,  and  the  amount  of  talking  they  did  in  that  time 
was  as  great  as  it  is  possible  for  a  body  of  that  size  to  do  in 
such  a  period,  in  this  imperfect  state  of  existence. 

The  debates  are  now  in  the  course  of  publication,  in  two 
quarto  or  three  octavo  volumes.  I  am  so  fortunate  as  to 
possess  one  of  these  octavo  volumes.  It  is  ten  inches  long, 
six  and  a  half  inches  wide,  and  three  inches  deep ;  and  it 
weighs  three  pounds  twelve  ounces  avoirdupois.  It  has  nine 
hundred  and  ninety-four  pages,  in  double  columns  and  fine 
type.  As  to  the  quality  of  these  debates,  you  and  I  will  never 
have  a  chance  to  differ ;  for  you  will  never  have  the  patience 
9* 


90  CONVENTION    OF    1853. 

to  read  them.  If  I  had  hated  you  as  much  as  I  love  you,  I 
could  wish  you  no  worse  fate  than  to  be  doomed  to  go  through 
them  all,  from  beginning  to  end.  Indeed,  no  mortal  man  will 
ever  read  them  through.  If  such  a  man  should  be  found,  I 
advise  Barnum  to  secure  him  for  his  museum.  He  will  be  a 
greater  curiosity  than  Joice  Heth  or  the  woolly  horse. 

I  had  occasion  to  keep  a  pretty  sharp  watch  upon  the  doings 
of  the  Convention,  as  they  were  reported  from  day  to  day  in 
the  newspapers ;  and  I  have  dipped  into  the  printed  volume  of 
debates,  here  and  there,  and  I  am  thus  qualified  to  tell  you,  — 
what  you  never  would  find  out  for  yourself,  —  that  there  is  a 
considerable  amount  of  ability  in  the  discussions  of  the  Con- 
vention. There  were  many  good  speeches  made  on  both 
sides  of  the  house.  And,  on  the  other  hand,  there  were  few 
that  were  so  bad  as  to  be  absurd  and  laughable.  But  more 
than  half  of  their  recorded  debates  are  just  of  that  kind  which 
is  the  most  wearisome  to  read.  They  are  neither  good  nor 
bad.  They  have  about  as  much  claim  to  be  printed  as  the 
talk  round  a  bar-room  fire  on  a  winter's  night,  or  the  speeches 
in  a  school-boys'  debating  club.  They  are  mere  dribble,  — 
the  rinsings  of  empty  brains,  and  the  runnings  of  party  ken- 
nels ;  as  nutritious  as  bran  bread,  and  as  savory  as  stale  cider. 

But  I  will  not  linger  upon  what  they  said,  but  proceed  to 
consider  what  they  did.  Their  duty  was  to  revise  an  existing 
Constitution,  and  not  to  make  a  bran-new  one  ;  and  they 
therefore  ought  to  have  presented  all  the  amendments  apper- 
taining to  one  subject  or  department  in  a  separate  proposition, 
to  be  voted  upon  independently.  For  instance,  if  any  changes 
were  proposed  in  the  Judiciary,  they  should  have  been  offered 
to  the  people  by  themselves.  In  the  same  way  with  the  Bill 
of  Rights,  with  the  Senate,  with  the  House  of  Representa- 
tives ;  following  the  division  of  the  Constitution  itself.  But, 
instead  of  this,  they  have  lumped  together  nearly  all  of  their 
alterations  into  one  portentous  mass,  which  must  be  bolted  or 
rejected  entire.  The  amended  Constitution  makes  a  pamphlet 
of  forty  pages.  Of  these,  thirty-eight  comprise  one  entire  prop- 
osition, and  must  be  voted  for  on  one  ticket.  Every  voter 
must  say  "  Yes  "  or  "  No  "  to  the  whole  of  it.  Appended  to 
this  monstrous  leviathan,  like  a  fleet  of  cock-boats  around  a 


PARTY    TRICKS.  9t 

line-of-battle  ship,  are  seven  other  amendments  or  proposi- 
tions, occupying  in  all  less  than  two  pages. 

Thus,  as  I  said  before,  there  is  no  chance  for  the  people's 
expressing  their  minds  upon  the  specific  alterations  made  in 
the  Constitution.  I,  for  instance,  should  probably  vote /or  the 
amendment  dividing  the  State  into  forty  Senatorial  districts, 
and  choosing  Senators  by  plurality,  and  I  should  certainly 
vote  against  the  change  in  the  tenure  of  judicial  officers. 
You  would  probably  vote  against  me  on  both  points,  though 
I  hope  not  on  the  last.  Now  see  the  embarrassment  into 
which  we  are  both  thrown.  I  am  obliged  to  ask  myself 
whether  I  like  the  application  of  the  plurality  rule  to  Senators 
well  enough  to  overbear  my  objections  to  the  change  in  the 
tenure  of  judges,  and  induce  me  to  take  the  two  rather  than 
neither.  This  question,  happily,  I  can  readily  answer.  You 
must  go  through  the  same  process  of  self-inquiry,  merely  shift- 
ing the  like  and  dislike. 

Now,  what  were  the  members  of  this  Convention  hired  to 
do  ?  They  were  hired  to  revise  the  Constitution,  and  not  to 
make  a  new  one,  and  the  fair  and  obvious  duty  imposed  upon 
them  was  to  submit  their  revisions  and  amendments  to  the 
judgment  of  the  people,  separately^ — each  by  itself^  —  and 
not  all,  or  nearly  all,  in  one  lump.  I  call  this  an  unauthorized 
and  unwarrantable  act  on  the  part  of  the  Convention ;  and  I 
maintain  that,  if  the  question  had  been  voted  upon  by  the 
people,  whether  the  result  of  their  labors  should  have  been 
submitted  in  this  way,  in  the  shape  of  an  entirely  new  Con- 
stitution, a  large  majority  would  have  voted  against  it.  But 
this  letter  is  already  long  enough,  so  I  will  stop  here,  though  I 
have  not  done  with  the  subject. 

Silas  Standfast.  . 


92  ADDRESS  OF  THE  CONVENTION. 


No.  III. 

My  DEAR  JoTHAM,  —  In  my  last  letter  I  spoke  of  the  unex- 
pected and  unauthorized  act  of  the  Convention,  in  presenting 
so  large  a  portion  of  their  amendments  in  one  lump:  and 
showed  you  that  such  a  course  was  a  departure  from  their 
plain  path  of  duty,  and  a  surprise  upon  the  people  of  the 
Commonwealth.  I  proceed  now  to  consider  the  arguments 
by  which  the  majority  of  the  Convention  justify  their  conduct 
in  this  regard.  You  will  find  them  set  forth  in  a  document 
appended  to  the  Constitution,  called  "  An  Address  of  the  Con- 
vention to  the  People."     They  are  as  follows :  — 

"  And,  first  of  all,  we  think  it  proper  to  present  for  your  considera- 
tion a  complete  system  of  organic  law.  The  present  Constitution  was 
adopted  in  1780,  and  there  have  since  been  added  thirteen  important 
amendments.  By  these  amendments  much  of  the  original  text  is 
already  annulled,  and  it  is  only  by  a  careful  and  critical  analysis  and 
comparison,  that  the  existing  provisions  can  be  determined.  This 
ought  not  to  be.  Constitutional  laws  should  be  plain,  that  they  may 
be  impartially  interpreted  and  faithfully  executed,  'that  every  man 
may  at  all  times  find  his  security  in  them.'  We  have  not  then 
thought  it  wise,  or  even  proper,  to  preserve,  as  a  part  of  the  Constitu- 
tion, provisions  which  have  long  since  been  annulled  ;  nor  do  we  feel 
justified  in  proposing  new  specific  amendments,  whose  adoption  will 
render  the  fundamental  law  of  the  Commonwealth  more  difficult  to  be 
understood,  and  less  certain  in  its  requirements. 

"  We  have,  therefore,  taken  what  remains  unchanged  of  the  Con- 
stitution of  1780,  and  the  subsequent  amendments,  preserving  the 
original  language,  wherever  it  appeared  practicable,  as  the  basis  of  a 
new  Constitution,  and  incorporated  therewith  such  of  the  resolutions  of 
this  Convention  as  are  necessary  to  give  to  the  whole,  at  once,  a  com- 
prehensive and  concise  character.  This  has  been  our  purpose  ;  and 
if  our  view  of  duty  is  correct,  we  are  entirely  justified  in  submitting  so 
much  of  our  work  as  will  give  to  the  people  of  Massachusetts  a  com- 
plete system  of  organic  law,  as  one  proposition  for  your  adoption  and 
ratification.  It  is  undoubtedly  true,  that  when  amendments  are  specific, 
and  not  numerous,  they  should  be  separately  submitted  to  the  judg- 
ment of  the  people ;  but  this  mode  becomes  impracticable  in  the  for- 


WHAT    A    CONSTITUTION    IS. 


93 


mation  of  a  new  government,  or  the  rough  revision  of  an  old  one.  Our 
attention  has  been  necessarily  directed  to  every  provision  of  the  Con- 
stitution, and  but  one  chapter  is  preserved  in  its  original  form.  It  only 
remained  for  us  either  to  submit  our  work,  to  be  added  to  the  old 
Constitution  as  specific  amendments,  with  the  conviction  that  their 
ratification  would  render  your  form  of  government  more  complicated 
than  it  now  is,  or  else  to  embody  all  of  the  old  and  the  new  that 
appears  necessary  to  the  safe  and  harmonious  action  of  the  system, 
and  present  it  as  The  Constitution  of  Massachusetts.'''* 

All  this  is  plausibly  and  artfully  put.  It  is  doubtless  the 
handiwork  of  that  excellent  logic-chopper,  Governor  Boutwell, 
who  has  got  a  head  as  deep  and  as  cold  as  a  well ;  and  who,  by 
the  rich  bounty  of  nature,  possesses  a  power  of  sophistry,  and 
an  art  of  making  the  worse  appear  the  better  reason,  such  as 
the  oldest  lawyer  at  the  bar  might  envy.  But  let  us  see  how 
these  solemn  sentences  will  pass  muster  :  — 

"  And,  first  of  all,  we  think  it  proper  to  present  for  your  considera- 
tion a  complete  system  of  organic  law.  The  present  Constitution  was 
adopted  in  1780,  and  there  have  since  been  added  thirteen  important 
amendments.  By  these  amendments  much  of  the  original  text  is 
annulled,  and  it  is  only  by  a  careful  and  critical  analysis  and  compari- 
son, that  the  existing  provisions  can  be  determined.  This  ought  not  to 
be.  Constitutional  laws  should  be  plain,  that  they  may  be  impartially 
interpreted  and  faithfully  executed,  '  that  every  man  may  at  all  times 
find  his  security  in  them.'  " 

In  these  few  words  there  is  both  an  overstatement  and  mis- 
statement. It  is  not  true  that  it  requires  a  "  careful  and  crit- 
ical analysis  "  to  determine  what  the  existing  provisions  of  the 
Constitution  are.  On  the  contrary,  there  is  not  a  man*  in 
Massachusetts,  who  has  sense  enough  to  make  a  will,  or  go 
in  when  it  rains,  who  cannot,  in  five  minutes'  time,  satisfy 
himself  as  to  any  constitutional  provision  be  feels  any  interest 
in.  It  would  be  better,  perhaps,  if  the  Constitution  were  as 
round  and  as  smooth  as  an  orange,  without  a  single  excres- 
cence upon  it  in  the  shape  of  an  amendment.  It  would  be  a 
prettier  thing  to  look  at.  But,  after  all,  the  proof  of  the 
orange  is  in  the  eating ;  if  it  tastes  good,  it  answers  the  ends 
for  which  an  orange  was  made.  So  the  end  for  which  a  con- 
stitution was  made  is  to  establish  and  maintain  a  government 


94  WHAT   A    CONSTITUTION    IS. 

which  shall  secure  the  liberty  of  all,  and  the  rights  of  all ;  and 
if  it  do  that,  it  does  all  its  appointed  work,  and  it  is  of  no 
consequence  that  it  is  not  perfectly  ship-shape,  any  more  than 
the  Constitution  of  the  United  States,  which  has  had  a  dozen 
amendments  tacked  on  to  it  since  its  first  adoption.  A  pol- 
ished mahogany  cart  would  be  handsomer  than  one  of  oak  and 
pine,  but  it  would  not  bring  home  your  hay  any  better.  Men 
feel  about  the  constitutions  under  which  they  live,  much  as 
you  do  about  your  house.  An  architect  might  find  some- 
thing to  criticize  in  it.  He  might  tell  you  that  your  porch 
was  not  well  proportioned,  that  your  parlors  were  too  low,  and 
that  your  entry  was  too  large,  or  your  kitchen  too  small.  You 
would  say  in  reply,  that  all  this  might  be  true,  but  that  you 
had  become  accustomed  to  these  things,  and  felt  no  discom- 
fort from  them,  and  that  they  had  even  become  endeared  to 
you  by  old  associations,  and  you  would  not  have  them  changed 
if  you  could.  It  would  not  be  difficult  to  build  a  finer  house ; 
but,  after  all,  it  would  not  suit  you  so  well.  Yours,  as  it 
stands,  is  warm  in  winter  and  cool  in  summer,  and  keeps  out 
the  rain,  and  your  wife  likes  it,  and  your  children  like  it,  and 
that  is  enough  for  you. 

Again,  Governor  Boutwell,  in  this  Address,  speaks  of  the 
Constitution  as  if  it  were  a  body  of  laws  coming  immediately 
home  to  every  man's  business  and  bosom,  and  that  they  ought 
to  be  so  plain  "  that  every  man  may  at  all  times  find  his  secu- 
rity in  them."  But  is  this  so  ?  Consult  your  own  memory  for 
a  reply.  You  are  a  selectman  and  a  justice  of  the  peace. 
How  many  times  in  your  life  have  you  had  occasion  to  con- 
sult the  Constitution,  for  any  thing  regarding  your  personal 
security,  or  for  any  thing  else  than  a  matter  of  discreet  curi- 
osity. Probably  not  once.  On  the  other  hand,  not  a  week 
passes  that  you  do  not  have  some  call  to  consult  the  statutes 
of  the  State.  The  Constitution  is  a  body  of  organic  rules. 
These  are  simple  in  their  construction  and  phraseology,  and 
the  chief  reason  why  they  are  not  perfectly  plain  —  if  they  are 
not  —  arises  from  the  imperfection  of  language.  For  instance, 
the  Constitution  provides  that  every  member  of  the  House  of 
Representatives  shall  be  chosen  by  written  votes.  This  seems 
entirely  free  from  ambiguity ;  but  some  years  ago  there  aroso 


WHAT    A    CONSTITUTION    IS.  95 

a  question  whether  printed  votes  were  or  were  not  written 
votes,  in  the  sense  in  which  that  word  is  used  in  the  Constitu- 
tion ;  and  it  was  taken  up  to  the  Supreme  Court,  and  they 
decided  that  loritten  votes  did  there  mean  printed  votes.  In 
this  case,  the  Supreme  Court  was  nothing  but  a  live  diction- 
ary. In  the  Constitution  of  the  United  States,  many  of  its 
words  and  phrases  have  thus  been  judicially  defined.  In 
the  famous  Dartmouth  College  case,  the  court  did  little 
more  than  define  the  word  contract.,  as  used  in  the  Constitu- 
tion. 

The  Constitution,  in  general,  bears  directly  and  immediately 
upon  the  Governor,  the  Legislature,  the  Judiciary,  but  only  in 
here  and  there  a  point  upon  the  citizens,  individually  and  per- 
sonally. It  is  for  the  government,  —  for  the  officers  whom  the 
people  elect,  and  the  magistrates  whom  the  Governor  ap- 
points. It  prescribes  certain  rules  and  conditions  to  which  all 
departments  of  the  government  must  conform.  It  marks  out 
certain  limits  over  which  they  must  not  pass.  It  defines  what 
may  be  done  and  what  may  not  be  done.  But  it  leaves  a 
wide  margin,  especially  for  the  Legislature,  to  act  in.  A  great 
deal  of  mischief  may  be  done,  and  yet  the  walls  of  the  Con- 
stitution not  be  overleaped.  Unjust  and  ridiculous  laws  may 
be  passed,  money  may  be  foolishly  spent,  and  the  most  absurd 
resolutions  adopted,  and  yet  not  a  hair  of  the  head  of  the  Con- 
stitution be  touched. 

You  sometimes  recreate  your  exhausted  faculties  with  a 
game  of  whist.  This  amusement  will  supply  us  with  a  famil- 
iar illustration  of  the  difference  between  a  Constitution  and 
the  body  of  statute  laws  made  under  it.  The  Constitution  an- 
swers to  what  may  be  called  the  laws  of  whist, —  such  as  that 
the  ace  takes  the  king,  that  you  must  follow  suit,  that  the 
trump  card  takes  every  thing.  These  are  comparatively  sim- 
ple, and  may  be  learned  in  an  evening.  But  the  rules  of 
whist,  which  prescribe  when  such  or  such  a  card  ought  to  be 
played,  are  numerous  and  complicated,  and  these  are  like  our 
statute  laws,  which  are,  and  must  be,  minute,  various,  and 
manifold. 

Again  :  whatever  practical  inconvenience  may  have  arisen 
from  there  being  several  amendments  appended  to  the  Consti- 


96  TWO    SET8    OF    REASONS. 

tution,  might  have  been  easily  obviated  by  tiie  action  of  the 
Convention  itself.  One  of  the  last  things  they  did  was  to  ap- 
point a  large  committee,  to  meet  in  November,  to  count  and 
declare  the  votes  on  which  the  fate  of  the  new  Constitution 
depends.  That  committee  might  have  been  charged  with  the 
further  duty  of  taking  the  Constitution  into  a  new  draft,  incor- 
porating all  the  present  amendments,  and  also  those  which  the 
people  should  sanction  by  their  votes  in  November.  This 
would  have  been  an  easy  task.  A  clear-headed  lawyer  could 
do  it  in  a  week,  and  not  work  hard  either. 

But  to  all  arguments  founded  upon  mere  inconvenience,  the 
answer  is  obvious  ;  and  that  is,  that  the  Convention  was  a 
body  acting-  under  instructions  from  the  people,  and  that  those 
instructions  were  to  revise  an  old  Constitution,  and  not  to  make 
a  new  one.  If  you  sent  your  watch  to  a  watchmaker  to  be 
repaired,  and  he  sent  you  in  a  bill  for  a  new  one,  you  would 
certainly  not  pay  him.  The  new  watch  might  be  a  better  one 
than  the  old  ;  but  that  is  not  the  question.  The  man  was  em- 
ployed to  do  ONE  thing,  and  he  did  another.  You  liked  your 
watch  because  your  father  gave  it  to  you,  because  it  was  a 
good  watch,  and  because  it  had  served  you  well. 

And  now,  my  dear  Jotham,  do  you  really  suppose  that  the 
solemn  blarney  of  that  plausible  smooth-tongue.  Governor 
Boutwell,  expresses  at  all  the  real  reasons  which  induced  the 
leaders  of  the  Convention  to  make  such  an  experiment  on  the 
sense  and  conscience  of  the  people.  If  you  do,  you  are 
greener  than  the  greenest  of  your  meadows  after  a  long  rain, 
and  I  advise  you  to  keep  out  of  the  way  of  the  grasshoppers, 
or  they  will  eat  you  up  bodily.  Some  politicians  have  two 
sets  of  reasons  or  motives.  One  is  a  show  set,  which  is  par- 
aded before  the  public,  and  the  other  is  the  genuine  article, 
which  is  only  brought  out  in  family  parties,  or  before  very  inti- 
mate friends.  The  former  are  like  the  drop  scene  at  a  theatre, 
to  amuse  spectators,  and  hide  the  ugliness  and  falseness  be- 
hind it. 

There  was  once  a  pretty  narrative  written  in  the  French 
language,  called  the  Temple  of  Truth,  describing  a  building 
in  which  all  the  residents  were  constrained  to  speak  the  truth 
involuntarily,  and  in.  spite  of  themselves.     If  Governor  Bout- 


TWO    SETS    OF    REASONS. 


m 


well  had  written  that  address  in  the  Temple  of  Truth,  it  would 
have  run  somewhat  in  this  wise  :  — 

"  You  will  observe,  fellow-citizens,  that  the  greater  part  of 
our  amendments  are  presented  to  your  consideration  in  one 
proposition,  appended  to  which  are  seven  others.  These  last 
are  of  no  great  consequence  to  the  objects  we  have  in  view, 
and  as  to  some  of  them,  we  have  doubts  whether  they  will  be 
ratified.  We  are  not  so  foolish  as  to  think,  for  instance,  that 
you  will,  by  the  adoption  of  the  eighth  proposition,  throw 
overboard  the  system  of  banking  which  has  served  you  so  long 
and  so  well,  and  substitute  for  it  the  w^ild  and  visionary  scheme 
there  presented.  You  did  not  expect  to  be  called  upon  to  vote 
for  all,  or  very  nearly  all,  our  amendments  on  one  ticket ;  but 
Mr.  Butler,  Mr.  Wilson,  and  myself,  who  have  managed  the 
Convention  from  the  beginning,  have,  after  much  deliberation, 
thought  this  the  most  expedient  course.  You  will  observe 
that  we  have  arranged  the  distribution  with  considerable 
adroitness.  We  have  not  put  any  thing  in  the  first  proposi- 
tion which  we  think  quite  hopeless  and  desperate ;  nor  have 
we  left  out  any  thing  which  we  think  verp  essential  to  the  real 
purpose  which  has  been  the  guiding  star  in  all  our  delibera- 
tions. That  purpose  has  been  to  secure  to  the  harmonious 
coalition  between  the  Democracy  and  the  Free  Democracy 
that  ascendency  in  the  State  which  they  have  enjoyed  in  the 
Convention,  and  thus  to  put  an  end  to  the  dominion  of  the 
Whig  party,  which  we  pretend  has  been  so  disastrous  to  the 
character,  happiness,  and  prosperity  of  our  ancient  Common- 
wealth. We  have  made  the  strong  support  the  weak,  so  that 
both  may  go  through  together,  like  a  cripple  on  a  blind  man's 
back,  —  one  supplying  eyes,  and  the  other  legs.  We  have,  for 
instance,  so  greatly  favored  the  small  towns,  in  our  system  of 
popular  representation,  that  we  hope  to  gain  the  support  of  all 
the  voters  in  them,  whether  Whigs  or  Democrats;  and  we 
hope,  also,  to  reconcile  the  Democracy  of  the  large  towns  to 
this  injustice  by  the  degradation  of  the  Judiciary,  and  the  aboli- 
tion of  the  poll-tax  as  a  condition  precedent  to  the  elective  fran- 
chise. Had  we  put  the  system  of  representation  as  a  proposition 
by  itself,  the  Democrats  in  the  large  towns  would  have  voted 
against  it ;  had  we  done  the  same  with  the  abolition  of  the  poU- 
10 


98  PROPOSED    CONSTITUTION    OF    1853. 

tax,  we  should  have  encountered  the  opposition  of  the  conserva- 
tive part  of  the  rural  population.  As  it  now  is,  we  think  we 
shall  have  the  votes  of  both.  By  the  acceptance  of  the  Constitu- 
tion, we  look  upon  the  Coalition  as  good  for  at  least  five  years, 
so  that  not  only  will  Mr.  Wilson  be  Governor,  but  I  shall  go 
to  the  Senate  of  the  United  States.  These,  fellow-citizens, 
are  the  real  motives  which  have  led  us  to  adopt  this  novel  and 
unexpected  course.  You  will  consider  this  communication  as 
confidential,  because,  for  the  sake  of  appearances,  we  shall  be 
obliged  to  assume  a  different  language,  and  talk  as  if  we  really 
believed  what  we  are  saying." 

Silas  Standfast. 


No.   IV. 

My  dear  Jotham,  —  The  subject  I  am  now  upon  —  the 
form  in  which  the  action  of  the  Convention  is  submitted  to 
the  people  for  their  ratification — is  rich  and  fruitful.  I  must 
linger  upon  it.  The  whole  of  its  beauties  are  not  revealed  by 
a  sight  of  the  new  Constitution  itself.  The  history  of  its 
conception  and  birth  in  the  Convention  is  curious  and  in- 
structive. 

That  body  was  in  session  for  three  months,  as  I  have  before 
said.  After  they  had  been  hacking  and  slashing  at  the  Con- 
stitution for  several  weeks,  the  question  naturally  arose  in  the 
minds  of  many  of  the  members,  as  to  the  shape  in  which 
their  labors  were  to  come  before  the  people,  —  especially  as 
there  were  some  inconsistencies  in  their  votes,  and  some  capri- 
cious and  arbitrary  variations  in  matters  to  which  one  general 
principle  seemed  obviously  applicable.  The  minority  mem- 
bers discussed  this  subject  occasionally  in  conversation  among 
themselves,  —  much,  however,  as  the  passengers  in  a  ship  talk 
about  the  way  she  is  navigated  by  the  officers  and  crew ;  be- 
cause it  was  obvious,  from  the  course  things  took,  that,  on  all 
important  subjects,  the  action  of  the  Convention  was  fixed 


PROPOSED    CONSTITUTION    OF    1853.  9& 

beforehand,  in  some  other  place  and  at  some  other  time  ;  and 
they  were  only  called  upon  to  make  up  the  work  which  had 
been  cut  out  elsewhere.  Towards  the  end  of  the  session,  Mr. 
Dana,  for  Manchester,  happened  to  remark,  incidentally,  in 
the  course  of  debate,  that,  so  far  as  he  could  see,  the  new 
Constitution  must  be  submitted  as  one  entire  proposition, 
and  that  the  alterations  could  not  be  proposed  separately. 
Upon  this,  Mr.  Hallett,  for  Wilbraham,  rose  in  his  place,  and 
in  his  most  leonine  manner  expressed  his  dissent  from  the 
views  of  the  gentleman  for  Manchester,  and  his  opinion  that 
the  amendments  could  be  presented  separately,  and  ovg-ht  to 
be  presented  separately,  and  that  if  the  gentleman  for  Man- 
chester could  not  do  it,  he  could.  The  minority  members 
pricked  up  their  ears  at  these  little  splinters  from  the  main 
body  of  debate,  and  hoped  that  more  light  might  be  allowed 
to  break  in  upon  them.  But  their  hopes  were  destined  to  dis- 
appointment. Upon  the  caucus  docket,  that  case  had  not  then 
been  called. 

Thus  things  went  on,  till,  towards  the  close  of  the  session, 
a  committee  on  revision  was  appointed,  who  were  charged 
with  the  duty  of  putting  into  shape  all  the  acts  of  the  Con- 
vention, reconciling  their  inconsistencies,  correcting  their  over- 
sights, and  moulding  them  into  the  form  in  which  they  should 
go  before  the  people  for  their  ratification.  That  committee 
asked  and  obtained  permission  to  report  in  print ;  and  their 
report  was  presented  at  so  late  a  day,  that  it  did  not  fairly 
get  into  the  hands  of  the  members,  so  as  to  be  ready  for  dis- 
cussion, till  the  morning  of  Monday,  August  1st,  on  which 
day  it  had  been  determined  that  the  Convention  should  ad- 
journ, and  on  which  day  it  did,  in  point  of  fact,  adjourn. 
Thus,  only  one  day  was  given,  not  merely  to  settle  the  impor- 
tant question,  as  to  whether  the  several  amendments  should 
be  presented  separately,  or  nearly  all  in  one  heap,  but  to  ex- 
amine the  report  of  the  committee,  and  to  see  how  far  it 
could  bear  a  critical  analysis,  how  far  one  part  agreed  with 
another,  and  how  far  it  comprised  the  action  of  the  Conven- 
tion and  excluded  all  they  had  declined  or  omitted  to  do. 
The  report,  as  printed  and  presented,  made  a  pamphlet  of 
considerable  size ;  and  it  had  been  so  hastily  prepared,  that  in 


100 


ILL    PREPARED. 


the  course  of  Monday  two  or  three  revised  editions  appeared^ 
from  time  to  time.  A  considerable  part  of  the  day  was  spent 
in  reading  over  this  pamphlet,  making  corrections,  alterations, 
erasures,  interlineations,  and  additions ;  and,  at  a  very  late 
hour  in  the  evening,  the  Convention  closed  its  sessions,  leav- 
ing the  ink  of  their  interlineations,  and  the  wafers  of  their 
additions,  hardly  dry  ;  and  this  printed  document,  thus  be- 
scrawled  and  bewafered,  remained  on  the  Presidents  desk,  as 
the  only  evidence  of  the  great  organic  law  proposed  to  the  peo- 
ple of  the  Commonwealth  of  Massachusetts. 

I  will  not  dwell  upon  the  unseemly  haste  with  which  a  re- 
port of  such  great  importance,  that  demanded  the  most  care- 
ful examination  and  patient  discussion,  was  hurried  through 
all  the  stages  of  debate  in  a  few  hours.  I  can  well  pardon 
the  impatience  of  country  members,  who  had  been  gasping 
through  the  heats  of  July,  in  a  crowded  city,  to  get  back  to 
their  cool  and  breezy  homesteads.  A  farmer  shut  up  in  Bos- 
ton, in  the  month  of  August,  with  his  cattle  lowing  after  him 
in  the  barn-yard,  and  his  corn  rustling  after  him  in  the  field,  is 
a  sight  to  move  the  springs  of  compassion  in  the  heart  of  the 
oldest  politician.  But  this  is  no  sufficient  apology  for  the 
indecent  neglect  of  all  the  time-hallowed  forms  of  procedure, 
—  the  rash  violation  of  all  legislative  decorum,  —  which  this 
act  of  the  Convention  involved. 

You  have  been  a  member  of  the  General  Court,  and  you 
know  the  way  in  which  business  is  done  there.  You  know 
that,  when  a  law  has  been  passed  through  all  its  stages,  it  is 
finally  engrossed;  that  is,  it  is  written  upon  parchment,  as  the 
least  destructible  material  that  can  be  so  used,  and  then 
submitted  to  the  examination  of  a  committee,  called  the 
"  Committee  on  Engrossed  Bills."  When  they  have  reported 
that  it  is  correctly  engrossed,  it  is  signed  by  the  presiding 
officers  of  the  two  Houses,  approved  by  the  Governor,  and 
then  deposited  in  the  archives  of  the  Commonwealth,  in  the 
office  of  the  Secretary.  Thus,  every  law  and  every  resolve 
passed  by  our  Legislature  may  be  found  in  the  Secretary's 
office,  carefully  written  on  parchment,  without  erasure  or  in- 
terlineation. And  the  legal  evidence  of  any  statute  or  resolve 
of  Massachusetts,  before  a  foreign  tribunal,  is  a  copy  certified 


CONSTITUTION    OF    1^20  WELL    PREPARED.  101 

by  the   Secretary,  under  the  seal  of  the  State,  which  copy 
must  be  made  from  the  original,  in  his  office. 

Such  is  the  care  with  which  the  integrity  of  common  legis- 
lative proceedings  is  guarded.  Surely,  so  grave  and  important 
an  instrument  as  a  constitution  is  entitled  to  at  least  an 
equal  degree  of  consideration  and  respect.  So  thought  the 
men  who  sat  in  the  Convention  of  1820.  Let  us  contrast 
their  conduct  with  that  of  their  degenerate  successors  in  1853. 
That  Convention  assembled  Wednesday,  November  15,  1820. 

On  November  30th,  Judge  Jackson,  of  Boston,  moved  that 
a  committee  be  appointed  "to  consider  in  what  manner  such 
amendments  in  the  present  constitution  of  government  of  the 
Commonwealth,  as  may  be  made  and  proposed  by  this  Con- 
vention, shall  be  submitted  to  the  people  for  their  ratification 
and  adoption,  and  in  what  manner  their  votes  thereon  shall  be 
returned,  and  the  result  ascertained." 

Judge  Jackson,  in  supporting  his  motion,  stated  that  his  ob- 
ject in  making  this  motion  was  to  remove  a  difficulty  which 
had  frequently  occurred  in  the  course  of  the  debate,  from  an 
uncertainty  with  respect  to  the  form  to  which  the  amendments 
agreed  to  by  the  Convention  should  be  reduced.  For  his  part, 
he  had  no  doubt  of  the  course  proper  to  be  pursued.  He 
thought  that  they  had  no  authority,  under  the  act  under  which 
they  were  convened,  to  reduce  the  Constitution  to  a  new  draft; 
and  if  they  had  the  power,  he  should  not  think  it  proper  to  ex- 
ercise it.  In  that  case,  when  the  amended  Constitution  was 
submitted  to  the  people,  they  would  be  obliged  to  accept  or 
reject  the  whole.  He  thought  it  the  most  proper  mode  to  pro- 
pose the  several  amendments  distinctly,  so  that,  when  sub- 
mitted to  the  people,  they  might  act  upon  each  specific  amend- 
ment, and  adopt  or  reject  it,  according  to  their  judgment  of 
each.  Otherwise,  they  might  reject  the  whole,  on  account  of 
their  objection  to  a  particular  article ;  and  thus  they  would 
fail  of  their  object,  and  all  the  labor  of  the  Convention  would 
be  lost. 

A  committee  of  five  persons  was  accordingly  appointed,  of 
which  Judge  Jackson  was  chairman.  That  committee,  De- 
cember 5th,  reported  five  resolutions,  of  which  the  fourth  is  as 
follows :  — 

10* 


102  CONSTITUTION    OF    1820    WELL    PREPARED. 

"  Resolved^  That  all  the  amendments  made  by  this  Convention  shall 
be  proposed  in  distinct  articles;  each  article  to  consist,  as  far  as  may 
be,  of  one  independent  proposition  ;  and  the  whole  to  be  so  arranged, 
that,  upon  the  adoption  or  rejection  of  any  one  or  more  of  them,  the 
other  parts  of  the  Constitution  may  remain  complete  and  consistent 
with  each  other.  If  any  two  or  more  propositions  shall  appear  to  be 
so  connected  together,  that  the  adoption  of  one  and  the  rejection  of 
another  would  produce  a  repugnance  between  different  parts  of  the 
Constitution,  or  would  introduce  an  alteration  therein,  not  intended  to 
be  proposed  by  this  Convention,  such  two  or  three  propositions  shall  be 
combined  in  one  article  ;  and  each  of  the  said  articles  shall  be  consid- 
ered as  a  distinct  amendment,  to  be  adopted  in  the  whole,  or  rejected 
in  the  whole,  as  the  people  shall  think  proper." 

The  fourth  resolution  was  passed,  December  8th.  The  oth- 
ers were  laid  on  the  table. 

On  Wednesday,  December  13th,  Mr.  Webster  moved  "  that 
a  committee  of  nine  members  be  appointed,  to  reduce  such 
amendments  as  have  been,  or  may  be,  agreed  upon,  to  the  form 
in  which  it  will  be  proper  to  submit  the  same  to  the  people  for 
ratification." 

Of  this  committee,  Judge  Jackson  was  also  chairman. 

On  Monday,  January  1st,  Mr.  Varnum,  of  Dracut,  moved 
that  the  committee  for  reducing  amendments  into  the  form  in 
which  it  shall  be  proper  to  submit  them  to  the  people,  be 
instructed  to  report  from  time  to  time,  as  they  shall  mature 
the  business  before  them. 

Mr.  Varnum  said  his  object  was  to  have  the  report  acted 
upon  from  time  to  time,  that  it  may  be  committed  to  an  en- 
grossing committee,  in  order  that  the  Convention  may  not  be 
obliged  to  wait  three  or  four  days  after  all  the  principles  of  the 
amendments  shall  have  been  adopted. 

On  Saturday,  January  6th,  Judge  Jackson  made  a  report, 
comprising  the  several  amendments,  substantially  in  the  form 
in  which  they  were  finally  submitted. 

On  Monday,  January  8th,  and  Tuesday,  January  9th,  the 
report  was  discussed  and  accepted,  the  exact  form  of  the 
amendments  settled,  two  copies  thereof  made  and  attested  by 
the  President  and  Secretary,  one  of  which  was  transmitted  to 
the  Governor,  and  the  other,  engrossed  on  parchment,  was  de- 
posited in  the  Secretary's  office,  and  then  the  Convention  ad- 
journed. 


THE    TWO    COMPARED.  103 

Thus  you  see  that  the  Convention  of  1820,  which  sat  fifty- 
five  days  only,  Sundays  included,  settled  on  the  twenty-third 
day  of  their  session  the  important  principle  that  their  several 
amendments  should  be  submitted  separately,  and  that  they  had 
three  days  to  discuss  the  language  of  the  several  amendments. 

The  Convention  of  1853,  sitting  three  months,  had  only  one 
day  in  which  to  settle  the  principle  and  shape  the  forms,  and 
that  day  the  last  day. 

But  this  is  too  plain  to  be  further  discussed ;  so  let  me  call 
your  attention,  my  dear  Jotham,  to  one  or  two  other  strange 
and  curious  facts.  There  are,  at  this  moment,  no  means  of 
making  legal  proof  of  the  amended  Constitution  :  that  is,  no 
such  means  as  are  known  to  the  laws  and  sanctioned  by  the 
usages  of  our  Commonwealth.  There  has  been  no  copy  en- 
grossed and  deposited  in  the  office  of  the  Secretary,  to  be 
referred  to  in  verification  of  its  provisions.  The  original  and 
parent  instrument  is  itself  a  pamphlet,  with  erasures,  interlin- 
eations, and  appendages.  The  Constitution  —  the  most  im- 
portant and  sacred  of  all  secular  codes  —  is  not  treated  with 
the  respect  paid  to  a  resolve  to  pay  a  man  for  a  horse  that  was 
lost  in  the  Shays  rebellion.  And  again,  that  original,  such  as 
it  is,  is  in  no  official  and  responsible  custody,  such  as  is  known 
to  the  law.  No  man  at  this  moment  can  know,  in  the  legal 
sense  of  the  word,  where  that  instrument  now  is.  I  presume 
it  is  in  the  keeping  of  one  of  the  three  gentlemen  who  sus- 
tained, respectively,  the  offices  of  President  and  Secretaries  of 
the  Convention.  Personally,  I  have  full  confidence  in  the 
integrity  of  those  gentlemen ;  I  believe  that  each  and  all  of 
them  are  incapable  of  tampering  with  the  work  of  the  Con- 
vention, or  of  making  any  changes  other  than  those  which 
were  scrawled  or  wafered  before  midnight  on  the  first  day  of 
August  last.  But  the  law  trusts  nothing  to  personal  integrity 
or  personal  character.  It  appeals  to  the  official  conscience  in 
all  cases ;  it  requires  official  verification.  Let  me  illustrate 
this.  You  will  admit  that  this  Commonwealth  never  saw  a 
more  perfect  embodiment  of  truth,  than  is  presented  in  the 
person  of  the  eminent  magistrate  now  presiding  over  its 
Supreme  Court.  The  water  with  which  he  was  baptized  was 
taken  from  the  very  well  in  which  Truth  lives.     And  yet  not 


104 


VALUE    OF    FORMS. 


a  judgment  of  his  own  court  could  be  proved  by  his  oath 
upon  the  stand.  There  must  be  an  official  copy,  certified  by 
the  clerk,  under  the  seal  of  the  court. 

And  now,  my  dear  Jotham,  I  beg  of  you  to  ponder  these 
things.  You  will  observe  that  this  indecorous  and  rash  course 
of  the  Convention  was  the  necessary  result  of  their  determi- 
nation to  present  so  very  large  a  part  of  their  alterations  in 
one  proposition  ;  because,  of  course,  they  were  obliged  to  wait 
till  the  last  moment,  —  till  every  thing  had  been  done,  —  in 
order  to  know  where  to  put  each  change,  and  how  to  distribute 
their  precious  emendations  so  cunningly  as  to  force  their  ac- 
ceptance. You  may  not  feel  so  much  as  I  do  on  this  point. 
You  have  not,  I  suppose,  the  habit  of  considering  how  often 
forms  and  phraseology  are  important.  But  everybody  must 
feel  hurt  and  indignant  at  this  coarse  and  reckless  disregard  of 
the  old  decorums  and  established  decencies  of  proceeding. 
When  any  man  tells  you  that  forms  are  of  no  consequence, 
set  him  down  for  either  a  shallow  or  an  unprincipled  person. 
Forms  and  substance  are  often  as  closely  blended  as  body  and 
soul  in  man.  On  this  point,  let  me  tell  you  a  story,  which 
shall  close  this  long  letter. 

Once  upon  a  time,  the  foreign  ambassadors  residing  in  Con- 
stantinople agreed  to  dine  together,  and  each  to  contribute  the 
national  dish  of  his  country.  The  English  ambassador  was 
to  furnish  a  plum-pudding.  So  he  wrote  the  recipe,  —  so 
much  flour,  so  much  sugar,  so  much  suet,  so  many  raisins,  to 
be  boiled  so  long,  and  in  so  much  water.  When  the  dinner 
was  going  on,  and  pudding  time  had  arrived,  a  cry  was  heard 
of  "  Room  for  the  English  ambassador's  dish ! "  and  four  stout 
servants  appeared,  reeling  and  panting  under  the  weight  of  an 
enormous  tureen,  filled  with  a  dark-colored  liquid  substance, 
of  the  consistency  of  gruel.  "  Alas  I "  said  the  ambassador,  "  I 
forgot  the  baff."  What  the  bag  is  to  the  pudding,  such  are  the 
forms  of  liberty  to  its  spirit.  The  cooks  of  the  Convention 
have  boiled  their  pudding  without  the  bag.  Will  the  people 
swallow  their  sickening  plum-porridge  ? 

Silas  Standfast. 


SESSIONS     OF     LEGISLATURE.  105 


No.   V. 

My  dear  Jotham,  —  I  now  proceed  to  examine  some  of 
the  particular  changes  and  amendments  adopted  by  the  Con- 
vention, not  in  any  methodical  order,  but  just  as  they  happen 
to  occur  to  me. 

They  have  taken  away  from  the  Governor  and  Lieutenant- 
Governor  their  respective  titles  of  His  Excellency  and  His 
Honor.  This  is  a  change  of  little  consequence ;  and  it  is 
quite  as  well  to  drop  these  prefixes,  the  fashion  of  which  has 
passed  away.  Titles  of  honor  are  somewhat  out  of  date,  like 
wigs  and  knee-breeches.  No  man  of  sense  will  value  such  a 
showy  handle  to  his  name,  and  we  hope,  perhaps  somewhat 
rashly,  that  no  fool  will  ever  be  Governor  of  Massachusetts. 

They  have  provided  that  the  pay  of  the  Legislature  shall 
cease  at  the  end  of  one  hundred  days  in  any  one  session. 
This  was  a  good  subject  to  talk  about,  and  a  considerable 
amount  of  declamatory  gas  was  evolved  in  the  course  of  the 
debate,  and  some  jokes,  rather  small  for  their  age,  let  off  upon 
the  length  of  our  sessions,  and  the  length  of  our  speeches. 
But  is  it  not  a  rather  trivial  and  undignified  act?  We  pro- 
claim to  the  world,  that  we  cannot  find  here  in  Massachusetts, 
with  all  our  schools,  our  churches,  our  intelligence,  and  our 
morals,  a  body  of  three  or  four  hundred  men,  who  can  be 
trusted  to  do  their  legislative  work  by  the  day,  but  that  we 
must  bind  them,  as  we  do  a  lazy  mechanic,  by  a  contract,  that, 
if  they  don't  finish  their  job  on  a  certain  day,  they  are  to  get 
no  pay  for  any  time  beyond.  This  looks  to  me  like  defiling 
our  own  nest.  If  we  want  to  have  our  legislation  done  cheap, 
why  not  offer  it,  as  they  do  the  contracts  for  supplying  the 
army  and  navy  of  the  United  States,  to  the  lowest  bidders. 
Suppose  we  authorize  the  Governor  to  advertise  for  proposals 
from  contractors,  to  engage  to  furnish  a  gang  of  three  or  four 
hundred  able-bodied  men  to  do  our  legislation,  paying  them 
so  much  by  the  job.  That  would  be  only  carrying  out  the 
principle  contained  in  the  limitation  of  the  session  to  one 
hundred  days. 


106  SESSIONS     OF     LEGISLATURE. 

The  increasing  length  of  our  sessions  —  a  great  nuisance  — 
is  owing  to  three  distinct  causes.  First,  the  great  increase  of 
the  State  in  wealth  and  population,  which  both  multiplies 
and  magnifies  the  action  of  the  Legislature.  Second,  the 
fact  that  so  many  of  the  members  live  at  home,  instead  of 
boarding  for  the  time  in  Boston,  and  go  out  and  come  in  upon 
the  railroads,  and. care  little  how  long  the  session  may  last, 
while  they  are  so  well  off.  This  habit  contracts  the  hours  of 
business,  and  no  measure  of  importance  can  be  acted  upon 
before  ten  in  the  morning,  or  after  four  in  the  afternoon, 
without  leading  to  a  long  debate  on  a  motion  to  reconsider 
for  the  benefit  of  the  absentees.  And,  lastly,  the  absurd 
magnitude  of  the  lower  House,  which  makes  business  crawl, 
and  groan,  and  creak,  like  a  huge,  overloaded  wagon  in 
muddy  roads.  Making  laws  with  four  hundred  heads,  and 
with  talking  tongues  in  at  least  half  of  them,  is  like  driving  an 
omnibus  with  six  horses  through  a  crowded  town.  Your  team 
is  always  getting  entangled ;  you  have  to  make  constant  stops, 
and  you  are  lucky  if  you  don't  get  overturned.  Of  these 
three  causes,  the  first  two  cannot  be  helped ;  the  last  can  ;  but 
the  quacks  of  the  Convention  have  only  made  the  evil  worse, 
as  I  shall  show  you  hereafter.  They  have  cured  the  patient 
of  a  cold,  and  left  him  with  a  fever. 

But  the  chief  objection  to  this  effort  to  restrict  the  length  of 
the  sessions  is,  that  it  will  not  prove  effectual.  If  a  man  or  a 
State  is  going  to  save  a  little  money  by  a  shabby  act,  let 
them  take  good  care  that  they  save  their  money  :  otherwise, 
they  will  have  the  shabbiness  and  nothing  to  show  for  it.  It 
will  be  a  mortgage,  without  an  estate.  You  will  observe  that 
the  language  of  the  amendment  is,  "  No  compensation  shall 
be  allowed  for  attendance  of  members  at  any  one  session,  for 
a  longer  time  than  one  hundred  days,"  but  there  is  no  pro- 
vision that  there  shall  not  be  more  than  one  session  in  a  single 
year.  Now  the  Governor  has,  by  the  present  Constitution, 
and  will  have  by  the  new  one,  if  adopted,  the  power  to  call 
an  extra  session,  whenever  the  welfare  of  the  Commonwealth 
shall  require.  If,  therefore,  he  thinks,  or  pretends  to  think,  a 
Legislature  have  left  important  duties  unfinished,  at  the  end 
of  one  hundred  days,  and  they  have  refused  to  work  at  noth- 


EXECUTIVE    COUNCIL.  107 

ing  a  day  afterwards,  the  Governor  will  assuredly  call  an  extra 
session.  This  very  thing,  in  fact,  has  recenlly  happened  in  the 
State  of  New  York,  where  they  have  a  similar  provision  in 
their  Constitution.  You  may  say  that  public  opinion  would 
forbid  such  a  way  of  getting  round  the  will  of  the  people. 
To  this  I  reply,  Then  why  not  let  public  opinion  take  care  of 
the  whole  matter  ? 

The  new  Constitution  provides  that  the  Legislature  "  shall 
in  no  case  decree  a  divorce,  or  hear  and  determine  any  causes 
touching  the  validity  of  the  marriage  contract."  This  pro- 
vision is  well  enough,  but  it  is  wholly  unnecessary.  They 
might  as  well  have  provided  that  the  Legislature  should  not 
set  the  Frog  Pond,  in  Boston  Common,  on  fire,  or  act  plays 
in  the  rotunda  of  the  State-House.  By  the  uniform  usage 
of  a  long  period  of  time,  as  well  as  by  positive  statute  enact- 
ments, the  Supreme  Court  has  had,  as  it  certainly  should  have, 
jurisdiction  in  all  questions  of  marriage  and  divorce.  Every- 
body understands  this  ;  everybody  is  content  with  it;  and  any 
attempt  on  the  part  of  the  General  Court  to  usurp  a  power, 
which,  within  the  memory  of  man,  they  have  not  exercised, 
would  be  as  repugnant  to  public  sentiment  as  if  they  should 
sit  as  a  tribunal  for  the  trial  of  cases  of  murder  or  treason. 
So  we  may  let  this  provision  pass  without  further  comment. 
It  is  neither  good  nor  bad  ;  it  is  only  a  clean  chip  in  a  basin 
of  soup. 

As  I  told  you  before,  I  don't  mean  to  follow  any  particular 
method  or  order,  in  dealing  with  the  new  Constitution,  but  to 
take  up  each  subject  as  the  humor  seizes  me.  This  letter, 
especially,  I  intend  to  make  up  of  scraps  and  fragments,  like 
a  picked-up  dinner  on  a  washing-day. 

You  are  aware  that  the  Executive  Council  has  been  re- 
tained. It  had  something  of  a  run  for  its  life  ;  the  committee 
reported  against  its  being  continued  ;  and  the  chairman,  Mr. 
Hallett,  supported  this  conclusion  zealousy,  ably,  and  elabo- 
rately. But  after  an  interesting  debate,  the  Convention  voted 
to  keep  the  body,  but  to  change  its  organization.  Their  num- 
ber is  reduced  to  eight,  and  instead  of  being  chosen  by  the 
Legislature,  on  a  general  ticket,  they  are  to  be  elected  by  the 
people  in  single  districts.     This  change  seems  to  me  injudi- 


108  EXECUTIVE    COUNCIL. 

cious.  I  see  no  objection  to  the  present  mode  of  election, 
and  I  never  would  make  a  change,  unless  there  were  some 
good  reason  for  it.  A  seat  in  the  Council  Chamber  is  a  very 
respectable  and  honorable  post,  but  not  one  which  either 
rouses  or  gratifies  a  soaring  ambition.  The  atmosphere  of 
the  place  is  a  little  sleepy  ;  perhaps  somewhat  after-dinnerish, 
even  in  the  forenoon.  It  would  be  a  very  good  place  for  you, 
my  dear  Jotham.  Your  judicial  gravity  of  countenance,  and 
your  excellent  habit  of  silence,  would  make  you  a  shining 
light  in  that  quiet  constellation.  A  body  like  the  General 
Court  seems  to  me  very  well  suited  to  make  the  proper  selec- 
tion of  Councillors ;  and  I  do  not  know  of  any  better  argu- 
ment to  support  this  proposition,  than  the  fact  that  they  have 
always  chosen  them  well.  I  have  in  my  mind's  eye  the  pic- 
ture of  a  model  Councillor ;  a  man  of  excellent,  sound,  quiet 
sense,  about  fifty  years  old,  weighing  from  one  hundred  and 
eighty  to  two  hundred  pounds,  with  a  deliberate  utterance,  a 
safe  judgment,  and  a  large  watch-chain,  well-polished  boots, 
with  a  slight  creak  in  them,  a  black-satin  waistcoat,  rounded 
into  a  comely  curve,  and  a  grave,  prosperous,  eight-per-cent. 
sort  of  a  manner.  But  if  you  devolve  the  election  upon  the 
people,  you  will  not  be  so  likely  to  have  men  of  this  stamp. 
You  will  be  more  likely  to  get  what  are  called  popular  men, — 
active,  noisy,  political  partisans,  who  make  themselves  con- 
spicuous by  their  earnest  continuance  in  button-holding,  and 
by  their  facility  of  public  speaking, — the  cheapest  and  poor- 
est of  talents  ;  men  with  small  judgment  and  large  self-esteem, 
who  will  not  be  able  to  sit  still,  or  hold  their  tongues,  and 
who  will  be  as  much  out  of  place  in  the  Council  Chamber 
as  a  dancing  dervish  in  a  Quaker  meeting,  or  a  barber  in  a 
nunnery. 

Besides,  there  is  an  obvious  propriety  in  electing  the  Coun- 
cillors on  a  general  ticket.  The  Governor,  Lieutenant-Gov- 
ernor, and  Council  make  up  a  sort  of  family  party,  where  the 
discussions  are  faithful  and  wise,  but  intimate  and  familiar. 
Their  relations  are,  or  should  be,  somewhat  confidential.  The 
Governor  should  feel  perfectly  at  ease  when  advising  with 
them.  It  is  desirable —  and  indeed  the  theory  of  the  Consti- 
tution   supposes  —  that  the  members  of  the  Council  should 


GOVERNOR.  109 

be  of  the  same  political  opinion  with  the  Executive  ;  and,  in 
point  of  fact,  I  believe  this  always  has  happened  to  be  the 
case,  with  the  exception  of  a  year  or  two.  But  now,  inas- 
much as  it  is  proposed  that  the  Governor  shall  be  chosen  by 
a  general  vote  of  the  State,  and  the  eight  Councillors  by  the 
vote  of  the  eight  separate  districts,  it  is  plainly  possible  for 
one  party  to  have  a  majority  in  the  whole  State,  and  yet  the 
other  party  to  have  majorities  in  five  districts.  In  such  an 
event,  there  would  be  a  majority  against  the  Governor  in  the 
body  to  which  his  nominations  are  submitted  for  confirma- 
tion. 

If  the  persons  composing  this  majority  are  unscrupulous 
political  partisans,  —  as  they  very  likely  would  be  by  pop- 
ular election,  —  they  would  reject  every  nomination,  how- 
ever pressing  the  necessity,  or  however  inconvenient  the  va- 
cancy. The  Supreme  Court  might  be  without  a  Chief  Jus- 
tice for  twelve  months,  and  the  State  prison  without  a 
warden.  Rogues  might  be  untried,  and  murderers  unhung. 
Mackerel  might  go  unbranded,  and  beef  and  pork  escape  in- 
spection. The  very  wheels  of  the  stage-coach  might  stick  fast 
in  an  opposition  bog.  And  even  if  there  should  be  a  majority 
of  the  Governor's  friends  in  the  Council,  it  can  hardly  ever  fail 
that  there  should  be  two  or  three  political  opponents ;  —  and 
what  will  be  their  position  ?  That  of  spies  in  an  enemy's  camp. 
They  will  bring  with  them  an  atmosphere  of  suspicion  and  dis- 
trust. The  poor  Governor  may  then  bid  farewell  to  the  quiet 
mind.  All  his  sayings  and  doings  will  be  watched,  distorted, 
and  remembered.  They  will  be  laid  up  to  be  used  as  ammu- 
nition in  future  political  contests.  No  decorous  gubernatorial 
jokes  will  ever  hereafter  enliven  the  grave  wisdom  of  the 
Council  Chamber,  or  paint  a  dignified  smile  on  official  cheeks. 
No  easy  chat  will  ever  soothe  the  austerity  of  executive  toils. 
There  would  be  danger  in  that.  All  communications  must 
be  curt,  laconic,  and  lapidary.  Nothing  must  be  said  which 
may  not  be  reported  in  an  opposition  newspaper.  I  do  not 
think  the  Governor  of  Massachusetts  holds  a  very  enviable 
office,  under  the  present  system.  He  gets  much  abuse,  and 
little  influence  or  gratitude.  He  has  to  go  to  public  dinners, 
and  make  speeches  after  them ;  to  review  troops  on  very 
11 


110 


THE    SECRET    BALLOT. 


unquiet  horses ;  to  have  a  great  deal  of  unsolicited  advice 
thrust  upon  him ;  to  be  insulted  by  anonymous  letters  ;  to 
have  his  time  eaten  up  by  swarms  of  bores ;  and  in  every 
appointment  that  he  makes,  to  create  twenty  bitter  enemies. 
But  make  the  contemplated  change,  and  we  shall  have  to  re- 
vive an  obsolete  law,  which  imposed  a  fine  on  any  one  who 
should  refuse  to  serve  as  Governor,  after  having  been  elected 
thereto.  We  shall  hardly  find  a  white  man  to  take  it ;  and 
may  have  occasion  to  commend  the  provident  forecast  of  the 
Convention,  which  left  the  door  of  the  office  open  to  our  col- 
ored brethren,  by  providing  that  a  man  might  be  Governor  of 
Massachusetts  who  is  not  a  citizen  of  the  United  States.) 

Silas  Standfast. 


No.  VI. 

My  dear  Jotham, —  You  have  heard  much,  of  late,  about 
the  secret  ballot  and  self-sealing  envelopes  :  indeed,  you  might 
say  that  you  had  heard  of  nothing  else.  One  would  suppose, 
from  the  zeal  with  which  this  measure  has  been  pressed,  that 
the  connection  between  constitutional  liberty  and  gluten  was 
as  close  as  that  between  taxation  and  representation.  Per- 
sonally, I  do  not  feel  so  strongly  on  this  subject  as  many  of 
my  political  friends.  I  am  well  content  with  the  law  as  it 
now  stands,  allowing  the  voter  to  use  an  envelope  or  not,  as 
he  pleases.  I  mean,  in  any  event,  to  let  everybody  know  how 
I  vote ;  that  is,  everybody  who  feels  an  interest  in  knowing. 
Nor  do  I  believe  that  any  party  will  gain  or  lose,  or  that  the 
result  of  any  election  will  be  affected,  by  any  particular  method 
of  depositing  votes.  I  dislike  the  arguments  by  which  this 
measure  is  supported,  more  than  I  do  the  measure  itself. 

I  am  a  Whig,  and  therefore  am  supposed  not  to  know  any 
more  about  the  people  than  a  Highlander  does  about  a  knee- 
buckle  ;  but  I  have  a  much  better  opinion  of  my  fellow-citizens 
of  Massachusetts,  than  to  suppose  that  they  need  the  protec- 


ITS    FALSE    PRETENCES.  llj 

tion  of  such  a  law.  I  think  great  injustice  has  been  done, 
both  to  labor  and  capital,  in  the  discussions  upon  this  subject. 
I  do  not  believe  that  the  voters  of  Massachusetts  are  afraid  to 
express  their  convictions  at  the  ballot-box.  Had  such  want  of 
confidence  in  the  manliness  of  our  people  been  uttered  by 
Whig  politicians,  would  not  the  stump  speakers  of  Democracy 
have  roared  themselves  hoarse  with  vindication  and  denuncia- 
tion ?  Would  not  the  "  spirits  of  our  fathers "  have  been 
called  upon  at  least  one  thousand  times,  to  repel  such  charges 
against  their  sons  ? 

There  has  been  a  great  deal  of  cant  and  humbug  and  mock- 
turtle  sentimentality  in  the  debates  on  the  subject.  Pictures 
have  been  drawn  —  more  pathetic  and  tear-compelling  than  a 
rope  of  Wethersfield  onions  —  of  poor,  conscientious  voters, 
forced  by  some  cruel  capitalist  to  vote  against  their  convic- 
tions, rather  than  deprive  their  children  of  bread.  Towards 
all  such  narratives  my  heart  is  as  hard  as  Pharaoh's.  I  do  not 
believe  a  word  of  them.  Such  drafts  are  not  honored  at  ray 
counter.  When  I  hear  these  stories,  my  impulse  is  to  answer 
them  with  an  expressive  gesture,  —  to  apply  the  end  of  my 
right  thumb  to  the  tip  of  my  nose,  and  extend  the  hand  with 
the  fingers  apart.  You  have  read  —  everybody  has  read  — 
the  Pickwick  Papers.  You  remember  Mr.  Job  Trotter,  who 
was  always  weeping  like  a  watering-cart,  but  whose  lachry- 
mal pumps  were  never  set  agoing  except  to  get  himself  out 
of  a  scrape  or  somebody  else  into  one.  Whenever  this  demo- 
cratic pathos  is  brought  out,  —  whenever  a  political  Job  Trot- 
ter begins  to  blubber,  and  to  flourish  his  pink  pocket-handker- 
chief, —  I  am  disposed  to  say,  like  the  indignant  Sam  Weller, 
"  What  are  you  melting  with  now  ?  —  the  consciousness  of 
willany  ?  " 

The  Secret  Ballot  Law  is  the  political  child  of  Mr.  Amasa 
Walker,  an  honest  and  amiable  man,  but  as  credulous  as  he 
is  honest,  and  as  visionary  as  he  is  amiable.  In  1850  he  was 
chairman  of  a  joint  legislative  committee,  which  heard  evi- 
dence and  made  a  report  upon  this  subject.  One  day  this 
committee  got  hold  of  the  tail  of  a  tremendous  story,  —  a  story 
of  a  forty-bomb-shell  power, — that  was  going  to  blow  the 
whole  Whig  party  sky-high.     The  hero  of  it  was  the  sexton 


112 


THE   SECRET    BALLOT. 


of  Brattle  Street  Church,  in  Boston.  He  was  described  as 
standing  near  the  poll?,  on  election  day,  with  a  tear  in  his  eye 
and  a  vote  for  Bancroft  in  his  hand,  not  daring  to  deposit  it 
till  encouraged  by  a  brave-hearted  Democrat ;  and  the  next 
day  he  was  turned  out  of  his  place.  And  who  do  you  think 
was  the  black-hearted  tyrant  who  turned  him  out,  as  the 
story  went  on  to  say?  Why,  Deacon  Moses  Grant;  a  man 
known  to  you,  —  known  all  over  the  State,  —  for  his  virtues, 
his  goodness,  and  his  worth.  Now  there  are  some  things  that 
cannot  be  believed,  because  they  are  too  ridiculous ;  and  this 
story  about  Deacon  Grant  is  one  of  them.  You  might  as 
well  try  to  make  the  people  in  Boston  believe  that  General 
Washington  ever  promised  an  office  to  one  man  and  gave  it 
to  another,  —  that  Old  Put  run  away  from  a  fight,  and  hid 
himself  in  a  smoke-house,  —  that  Rufus  Choate  ever  made  a 
dull  speech,  or  Stephen  C.  Phillips  a  short  one,  —  that  John 
Van  Buren  ever  spoke  half  an  hour  and  said  nothing  black- 
guard, —  that  Horace  Greeley  ever  appeared  in  white-kid 
gloves  and  patent-leather  boots,  —  or  any  other  monstrous 
and  impossible  invention.  It  is  hardly  necessary  to  add,  that 
the  whole  story  turned  out,  on  inquiry,  to  be  without  a  shadow 
of  foundation. 

There  are  two  good  reasons  which  make  me  doubt  all  these 
stories  about  the  oppressions  of  capital  and  the  wrongs  of 
labor.  In  the  first  place,  if  a  rich  man  were  disposed  to  make 
a  tyrant's  use  of  his  wealth,  he  would  not  dare  to  do  it.  I 
never  was  in  the  city,  town,  or  village,  in  which  public  opin- 
ion would  not  frown  indignantly  and  successfully  upon  such 
an  abuse  of  power.  In  the  second  place,  the  interests  of  men, 
their  selfish  instincts,  which  you  may  always  rely  upon  as 
certainly  as  upon  the  force  of  gravity,  will  prevent  such  con- 
duct as  the  Secret  Ballot  Law  is  aimed  against.  Take,  for 
instance,  my  own  case.  The  man  that  I  employ  to  copy  my 
papers  is  an  Abolitionist,  a  woman's-rights  man,  a  believer  in 
the  potato  gospel  of  St.  Graham,  a  Come-outer,  —  in  short, 
every  thing  that  I  am  not.  But  then  he  writes  an  excellent 
hand,  he  brings  home  his  work  at  the  very  moment  he  prom- 
ises, and  is  moderate  in  his  charges;  I  therefore  employ  him, 
and  shall  continue  to  employ  him,  and  care  as  little  about  his 


DEGRADES     MANHOOD.  Il3 

opinions  as  I  do  about  where  he  buys  his  ink  or  his  pens.  So 
the  tenant  of  one  of  the  houses  I  have  charge  of  is  one  of  the 
noisest  and  most  pestilent  Democrats  that  ever  shouted  in  a 
caucus  or  strutted  in  a  torch-light  procession.  But  then  he 
pays  his  rent  punctually  and  takes  good  care  of  the  premises, 
and  that  is  all  I  inquire  about.  A  paying  Democrat  is  a  bet- 
ter tenant  than  a  non-paying  Whig. 

Many  persons  lay  claim  to  public  sympathy  on  this  head, 
under  false  pretences.  John  Muggins,  for  instance,  works  in 
a  machine-shop.  He  is  a  Democrat ;  but  he  is  also  lazy, 
drunken,  worthless,  and  ill-tempered.  He  is  dismissed  from 
his  employment  on  account  of  these  bad  qualities.  Muggins 
straightway  becomes  a  martyr.  He  is  a  victim  of  a  cruel 
and  aristocratic  faction.  He  has  had  the  courage  to  vote  for 
Boutwell  when  his  employer  voted  for  Winthrop,  and  there- 
fore he  has  lost  his  place.  The  bread  is  taken  from  his  mouth, 
because  he  has  dared  to  exercise  the  proud  privilege  of  a  free- 
man. Great  is  the  stir  in  the  tents  of  the  unterrified.  Mug- 
gins becomes  another  Morgan.  Henry  Wilson  discourses  of 
Russian  serfs,  and  of  Francis  Bowen  and  the  North  Ameri- 
can Review.  Butler's  soul  is  disquieted  within  him,  and  the 
ears  of  his  hearers  suffer  accordingly. 

I  have  another  objection  to  the  secret  ballot,  —  and  it  is  a 
practical  objection,  —  which  is,  that  it  cannot  be  effectual,  in  the 
cases  for  which  it  is  intended,  without  the  most  degrading  decep- 
tion on  the  part  of  the  secret  voter.  The  object  of  the  law  is 
to  enable  a  man  to  conceal  his  vote.  But  a  man  is  not  a 
Whig  or  a  Democrat  because  he  votes  in  a  certain  way ;  but 
he  votes  in  a  certain  way  because  he  is  a  Whig  or  a  Demo- 
crat. The  act  of  voting  is  but  one  way  of  expressing  opin- 
ions which,  in  some  form  or  other,  the  voter  is  constantly  let- 
ting out.  Whenever  it  is  an  object  to  find  out  how  a  man 
votes,  it  can  be  done,  unless  he  covers  himself,  from  top  to  toe, 
with  a  cloak  of  falsehood.  You  remember  the  actor  in  one  of 
Dickens's  stories,  who  entered  into  the'  part  of  Othello  with  so 
much  spirit  that  he  blacked  himself  all  over  whenever  he 
played  it.  So  a  man  cannot  have  the  protection  of  the  secret 
ballot  unless  he  blacks  himself  all  over  with  lying.  He  must 
vote  one  way  and  live  another.  He  must  set  a  guard  upon 
11* 


114  THE    SECRET    BALLOT. 

his  lips  and  his  face,  and  never  speak  a  true  word  nor  look  a 
true  look. 

But  suppose,  after  all,  by  way  of  argument,  that  the  result 
of  some  close  struggle,  in  some  particular  place,  shows  that 
there  has  been  treachery  in  the  camp,  and  a  Whig  capitalist, 
who  has  many  voters  under  him,  determines  to  institute  a 
rigid  inquiry  among  his  hands.  He  summons  one  of  them  — 
a  suspected  voter  —  into  his  presence,  and  says  to  him,  directly, 
"  John,  how  did  you  vote  yesterday  ?  "  Now  there  are  three 
ways  in  which  John,  who,  pretending  to  be  a  Whig,  has  voted 
the  Democratic  ticket,  can  meet  this  question.  He  may  tell 
the  truth ;  in  which  case,  he  is  discharged,  and  the  secret 
ballot  will  have  done  him  no  good.  He  may  refuse  to  answer ; 
but  his  employer  interprets  his  silence  into  a  confession  of  the 
truth,  and  acts  accordingly.  He  may  tell  a  downright  lie,  and 
say. he  voted  the  Whig  ticket.  In  this  case,  you  have  made 
the  secret  ballot  do  its  work,  but  have  you  not  paid  pretty 
dearly  for  your  political  whistle  ? 

You  are  a  man  of  truth,  my  dear  Jotham :  you  were  a  boy 
of  truth.  I  have  not  forgotten  the  flogging  you  got  because 
you  would  not  tell  who  painted  the  master's  horse  pea-green, 
and  yet  would  not  say  you  did  not  know  who  did  it.  How 
proud  I  was  of  you  on  that  day !  prouder  than  if  you  had 
been  the  best  scholar  that  ever  blushed  before  a  committee,  or 
spouted  at  an  academy  exhibition.  There  never  was  a  time 
when  you  would  have  purchased  the  success  of  your  party  or 
your  candidate  by  a  lie.  The  triumph  of  any  party  is  of  less 
consequence  than  that  the  people  of  Massachusetts  should  be 
a  truth-loving  community.  A  State  has  no  right  to  degrade 
the  morals  of  its  subjects,  in  any  way.  Think  of  a  com- 
munity's deliberately  encouraging  falsehood,  tempting  men 
into  untruth,  setting  a  trap  for  double-dealing,  putting  a 
bounty  upon  prevarication ! 

We  live  in  a  world  of  imperfections.  I  have  read  of  a  man 
in  Virginia,  who,  noticing  that  the  squirrels  ate  only  the  out- 
side rows  of  fields  of  corn,  said  he  would  have  a  field  with  no 
outside  rows.  But  on  earth  we  cannot  have  a  field  of  corn 
with  no  outside  rows.     It  may  be  possible  in  heaven. 

In  our  country  the  pursuit  of  wealth  is  the  absorbing  interest. 


VOTERS    PROTECTED.  tl5 

"What  are  the  dreams  and  visions  of  all  the  boys  in  your  town  ? 
Why,  to  go  to  Boston,  or  New  York,  or  South  America,  or 
China,  or  California,  and  get  a  great  deal  of  money,  —  to  ride 
in  a  carriage,  —  to  live  in  a  four-story  house,  with  Brussels 
carpets  in  every  room,  —  to  wear  the  handsomest  gold  watch 
that  money  can  buy,  —  to  go  to  the  Museum,  —  to  have  a 
knife  with  fifteen  blades.  When  everybody  is  thus  struggling 
and  burning  to  be  rich,  —  when,  in  point  of  fact,  so  many  do 
become  rich,  —  it  is  possible  that  there  may  be  now  and  then. 
a  bad  man  disposed  to  abuse  the  power  that  wealth  gives  him. 
And  I  do  not  know  that  you  can  help  this  by  any  legitimate 
remedy,  that  will  not  insure  a  positive  evil,  in  order  to  guard 
against  a  contingent  abuse. 

You  are  aware  that  we  have  a  special  statute  provision  for 
the  protection  of  the  poor  voter.  By  a  law  passed  by  the 
General  Court,  in  1852,  it  is  made  a  criminal  offence,  punish- 
able by  fine  and  imprisonment,  to  attempt  to  influence  voters 
by  bribes,  threats,  or  promises  of  employment.  I  like  a  law 
of  this  kind.  A  rich  man  that  meddles  with  the  political  con- 
science of  the  laborers  whom  he  employs,  —  who  bullies  men 
into  voting  one  way,  or  punishes  them  for  voting  another,  is 
not  only  a  tyrant,  but  a  blockhead.  He  is  at  once  odious  and 
contemptible.  He  is  as  stupid  as  King  Log,  and  as  mischiev- 
ous as  King  Stork.  He  is  doing  what  he  can,  in  his  paltry 
sphere,  to  bring  on  a  time  when  the  different  classes  of  society, 
instead  of  working  together  for  the  common  good,  like  beavers 
in  a  meadow,  or  bees  in  a  hive,  will  be  fighting  together  and 
mutually  destroying  each  other,  like  so  many  Kilkenny  cats. 
You  and  I  are  not  rich,  but  we  have  something  to  lose  in  a 
universal  row ;  and  I  feel  towards  one  of  these  money-laden 
donkeys  much  as  you  do  towards  a  woodchuck  among  your 
cauliflowers,  or  a  strange  dog  in  your  sheep-pasture.  Punish 
him  as  you  will ;  punish  him  where  he  is  most  sensitive  ;  take 
away  his  money  by  fines  ;  make  him  ridiculous,  and  hold  him 
up  to  the  jeers  and  laughter  of  his  intended  victims,  just  as 
you  nail  a  hawk  on  your  barn-door  to  refresh  the  spirits  of 
your  hens  and  turkeys.  Revive  the  pillory  for  his  special 
benefit ;  order  the  sheriff  to  tar  and  feather  him  in  a  grave 
and    orderly   manner ;    paint   his   nose  sky-blue,  and  in  fast 


116  NOT    FOR    A    CONSTITUTION. 

colors,  SO  that  it  shall  not  wear  off  till  the  next  election.  Do 
what  you  like,  —  he  will  have  no  sympathy  from  me. 

But  even  if  you  claim  the  expediency  of  the  secret  ballot 
as  a  preventive  or  remedial  measure,  it  has  no  claim  to 
come  into  the  Constitution.  In  the  first  place,  it  is  a 
matter  of  detail  or  form,  and  a  constitution  is  a  collection  of 
rules  and  principles.  Governor  Boutwell  said,  on  one  occasion, 
in  the  Convention,  that  they  should  not  submit  to  the  people 
every  truth  which  they  might  regard  as  correct  and  proper  in 
itself,  but  only  those  truths  which  were  to  be  regarded  as  so 
important  as  to  justify  their  being  incorporated  into  the  Con- 
stitution. I  like  to  quote  from  Governor  Boutwell  when  he 
is  right.  You  will  take  none  of  his  language.  He  uses  the 
emphatic  word  truths  to  denote  the  propositions  which  belong 
in  a  Constitution ;  and  this  is  just  the  right  word. 

In  the  next  place,  it  is  a  party  measure,  —  the  result  of  a 
party  struggle,  —  and  the  Constitution  is  no  place  on  which 
to  suspend  party  trophies.  A  perfect  constitution  would  be 
an  aggregation  of  truths  to  which  all  are  ready  to  give  their 
assent ;  because  a  constitution  is  meant  for  the  protection  of 
all.  The  best  constitution  is  that  which  contains  the  smallest 
amount  of  disputed  propositions ;  or,  in  other  words,  that  is 
the  best  constitution  which  reflects  the  least  amount  of  par- 
tisan or  temporary  feeling.  When  political  parties  begin  to 
deal  with  constitutions  so  as,  through  them,  to  accomplish 
party  ends,  and  maintain  party  ascendency,  the  first  step  has 
been  taken  towards  disorganization  and  revolution.  The 
Constitution  is  not  a  football,  to  be  kicked  to  and  fro,  be- 
tween the  feet,  and  in  the  dust  of  contending  parties.  You 
may  put  an  argument  on  this  subject  in  the  shape  of  a  di- 
lemma, which  is  unanswerable.  The  secret  ballot  will  or 
will  not  be  sustained  by  the  public  sentiment  of  Massachu- 
setts. If  it  be  sustained,  it  may  safely  be  left  on  the  statute- 
book,  because  there  will  be  no  disposition  to  repeal  it.  If  it 
be  not  sustained,  it  ought  to  be  left  on  the  statute-book,  so 
that  it  may  be  repealed. 

And  now  I  want  to  call  your  attention  to  one  curious  fact, 
which  is,  that  by  the  new  Constitution  envelopes  are  to  be 
used  in  national,  state,  county,  and  city  elections,  but  not  in 


QUALIFICATIONS    OF    VOTERS.  117 

town  elections.  What  do  you  suppose  was  the  reason  for  this 
purely  arbitrary  distinction,  —  this  distinction  without  a  differ- 
ence ?  I  think  you  will  be  puzzled  to  answer  this  question, 
after  taking  your  time  for  it, —  after  looking  into  the  fire,  and 
out  of  the  window,  and  up  to  the  ceiling,  and  rubbing  your 
left  shin,  as  is  your  custom  when  you  are  puzzled.  I  can 
answer  it  for  you,  but  I  will  not  now,  because  my  letter  is  long 
enough,  and  because  there  are  one  or  two  other  similar  incon- 
sistencies, and  I  want  to  wait  till  I  can  put  them  all  together, 
and  show  you  the  family  likeness  in  all. 

Silas  Standfast. 


No.  VII. 

My  dear  Jotham,  —  By  the  present  Constitution,  no  per- 
son can  vote  in  any  election  held  within  the  State,  unless  he 
shall  have  paid,  by  himself  or  his  lawful  representative,  some 
state  or  county  tax,  which  shall,  within  two  years  next  pre- 
ceding such  election,  have  been  assessed  upon  him,  in  some 
town  or  district  of  the  Commonwealth. 

By  the  new  Constitution,  the  payment  of  a  tax  is  not  re- 
quired as  a  condition  precedent  to  voting  in  the  election  of 
any  national  or  state  officers. 

By  the  laws  of  Massachusetts,  as  you  are  well  aware,  per- 
sons who  are  not  possessed  of  any  taxable  property  pay  only 
a  poll-tax,  which  can  never  exceed  the  sum  of  one  dollar  and 
fifty  cents  annually,  and  may  be,  and  often  is,  much  less. 

By  the  proposed  change,  the  elective  franchise  will  be  ex- 
tended to  a  certain  class  of  persons  who  cannot,  or  will  not, 
pay  this  slight  poll-tax. 

This  change  in  the  qualification  of  voters  rests  upon  what 
I  understand  to  be  a  Democratic  doctrine,  that  every  full- 
grown,  featherless  biped,  who  wears  a  hat  instead  of  a  bonnet, 
has  a  natural  right  to  vote  ;  and  that  to  exact  the  payment  of 
a  poll-tax,  as  a  condition  precedent  to  the  exercise  of  the  elec- 


118  QUALIFICATIONS    OF    VOTERS. 

tive  franchise,  is  to  force  a  man  to  buy  that  to  which  he  has  a 
free  right,  and  also  to  bestow  upon  property  a  privilege  which 
belongs  to  manhood.  Let  me  examine  this  doctrine,  that 
every  man  has  a  right  to  vote.,  simply  because  he  is  a  man. 

In  the  first  place,  let  me  apply  to  it  a  test  which  walks 
directly  into  your  own  house,  through  your  front  door.  Your 
wife  —  my  excellent  sister  Martha  —  has  more  sense  under  her 
nightcap  than  you  have  under  yours,  and  you  know  it,  my 
dear  Jotham  ;  and  I  have  always  honored  you  for  your  manly 
recognition  of  your  wife's  intellectual  superiority.  You  owe 
your  respectable  position  in  life,  in  part,  to  her  admirable  un- 
derstanding, and  your  willingness  to  walk  by  its  light.  Now, 
will  you  please  to  tell  me  how  it  happens  thatyow  have  a  nat- 
ural right  to  vote,  and  she  has  not  ?  I  will  give  you  all  the 
time  you  ask  to  consider  this  question,  and  grant  you  permis- 
sion to  consult  all  the  oracles  of  Democracy,  from  Thomas 
Jefferson  to  George  Bancroft ;  and,  at  the  end,  you  will  have 
to  give  it  up  as  a  bad  job.  If  man,  as  a  human  beings  has  a 
natural  right  to  vote,  we  are  guilty  of  the  grossest  injustice  in 
saying  that  woman  shall  not  vote.  The  only  ground  on  which 
we  can  put  her  exclusion  from  the  elective  franchise,  consistently 
with  justice,  is,  that  the  duties  imposed  upon  her  by  the  family 
relation  are  incompatible  with  the  discharge  of  public  func- 
tions, the  function  of  voting  included  ;  and  that,  as  the  former 
are  of  primary  importance,  and  the  latter  of  secondary,  the 
latter  must  give  way.  Thus  women  are  denied  the  right  of 
voting,  because  a  great  majority  of  men,  and  a  great  majority  of 
women,  are  of  the  opinion  that  their  value  as  women,  as  wives, 
and  as  mothers,  will  be  impaired  by  their  becoming  voters  and 
mingling  in  the  strife  of  politics ;  so  that  the  highest  interests 
of  society  exact  this  renunciation  at  their  hands. 

Take  another  illustration  from  your  own  household.  There 
is  your  oldest  son,  William,  who  is  twenty  years  old  and  a 
Senior  in  college.  You  are  proud  of  that  boy,  and  well  you 
may  be.  He  has  the  figure  and  bearing  of  a  man,  and  a 
man's  maturity  of  mind  and  strength  of  character.  But  he 
cannot  vote,  simply  because  the  State,  which  is  compelled  to 
fix  some  precise  age  for  it,  has  determined  that  a  man  must 
have  lived  twenty-owe  years,  and  not  a  minute  less,  before  he 


ELECTIVE    FRANCHISE    A    TRUST.  119 

can  enjoy  the  privilege.  So  felons  in  the  State  prison,  and 
paupers  in  the  almshouse,  are  deprived  of  the  power  of  voting, 
which  they  once  possessed. 

Thus  you  see  that  the  State  —  the  aggregate  wisdom  and 
conscience  of  the  whole  community  —  withholds  the  right  of 
voting  from  one  class  of  human  beings  entirely  ;  in  another,  it 
postpones  the  power  of  exercising  it  to  a  certain  period  ;  and 
it  takes  it  away  from  two  other  classes,  after  having  once  be- 
stowed it  upon  them.  Now,  if  society  has  the  right  to  make 
these  various  distinctions,  it  clearly  has  the  right  to  make  dis- 
crimination among  human  beings,  of  the  masculine  gender, 
who  are  twenty-one  years  and  upwards,  and  neither  felons  nor 
paupers. 

Thus  we  are  led  to  the  conclusion,  that  the  elective  franchise 
is  a  trust,  or  privilege,  which  may  be  bestowed  or  denied,  accord- 
ing as  the  interests  of  the  State  and  the  well-being  of  the  whole 
community  may  require. 

Now,  supposing  (what  is  certainly  true)  that  the  State  has 
the  right  to  deny  the  privilege  of  voting  to  those  who  have  not 
paid  a  tax  within  two  years,  is  it  expedient  to  exercise  that 
right  ? 

There  are  few  laws  or  rules  which  do  not  or  may  not  work 
hardship  sometimes.  It  is  their  very  nature  to  do  so,  —  it  can- 
not be  helped.  There  are  few  laws,  therefore,  which  may  not 
be  attacked  from  a  sympathetic  point  of  view.  But  sympathy 
is  not  always  a  safe,  nor  even  a  controlling,  motive  in  legisla- 
tion. The  well-being  of  the  people  is  the  highest  law.  I  dare 
say  that  the  present  rule  may  bear  hard  upon  here  and  there  a 
poor  laboring  man,  burdened  with  a  large  family,  who  gives 
up  the  right  of  voting  because  it  is  sorely  inconvenient  for 
him  to  pay  a  poll-tax.  Poverty  is  to  me  a  sacred  thing.  No 
sneer  or  scoff  of  mine  shall  ever  light  upon  the  poor  man's 
head.  That  would  be  to  beat  a  cripple  with  his  own  crutch.* 
But  I  also  do  dare  to  say,  that,  in  spite  of  individual  hardship, 
the  interests  of  the  Slate  arejhe  best  secured  by  the  present  con- 


*  Mr.  Eames,  of  Washington,  one  of  the  oldest  members  of  the  Convention,  —  a 
member  of  the  Convention  of  1820,  and  a  highly  respectable  man,  —  said  he  never 
heard  a  man  complain  of  paying  a  poll-tax. 


120  WHO    SHALL    VOTE. 

stitutional  provision ;  and  that  a  good  citizen  should  submit  to  a 
rule  of  exclusion^  salutary  and  expedient  on  the  whole,  though  it 
may  be  hard  in  his  particular  case. 

You  must  remember  that  laws  are  never  made  for  excep- 
tional cases.  We  legislate  by  classes  and  for  classes,  and  not 
for  here  and  there  an  individual.  I  have  no  question,  that 
there  are  many  paupers  at  this  moment  in  Massachusetts,  who 
have  the  understanding  and  the  moral  worth  which  would 
qualify  them  to  vote,  —  who  have  been  reduced  to  the  necessity 
of  public  support  by  sickness  or  inevitable  misfortune ;  and 
certainly  no  men  have  a  greater  interest  in  the  State  than  they 
have,  for  their  very  existence  depends  upon  it.  And  yet  pau- 
pers do  not  vote,  because,  taking  them  as  a  whole,  the  inter- 
ests of  society  are  deemed  to  be  best  subserved  by  excluding 
them.  In  legislation,  all  who  are  in  the  same  boat  must  go 
the  same  way. 

The  above  conclusion,  as  to  the  expediency  of  retaining  the 
present  constitutional  provision,  is  in  some  measure  the  result 
of  observation.  The  real  qualifications  to  be  claimed  in  voters 
are  moral  and  intellectual ;  the  State  endeavors  to  secure  such 
voters,  and  such  alone,  as  have  a  fair  amount  of  sense  and 
worth ;  and  if  the  right  of  voting  is  made  dependent  upon  the 
payment  of  a  poll-tax,  it  is  because  experience  has  shown,  that 
in  the  long  run,  and  as  a  general  rule,  the  personal  qualities 
which  entitle  a  man  to  vote  are  not  commonly  to  be  found  in 
those  who  do  not  pay  this  very  small  contribution  to  maintain 
the  order  and  well-being  of  society,  whether  from  inability  to 
do  so,  or,  what  is  oftenest  the  case,  from  unwillingness.  For, 
of  the  persons  now  excluded  from  voting  by  reason  of  the  non- 
payment of  a  poll-tax,  a  very  large  majority,  in  my  opinion,  is 
made  up  of  those  who  do  not  choose  to  pay  it;  and  that  those 
who  cannot  pay  it  form  a  very  trifling  percentage  ;  and  I  say 
further,  that  a  man  who  will  not  pay  it,  who  will  not  exercise 
the  small  self-denial  requisite  to  pay  it,  has  not  the  moral  qual- 
ities entitling  him  to  vote. 

These  may  not  be  popular  doctrines,  but  they  are  not  the 
less  true  and  important  for  all  that  Stump  speakers  do  not 
carry  them  about  in  their  saddle-bags.  If  I  were  a  candidate 
for  the  General  Court,  I  might  fail  of  my  election  if  it  were 


PURITY    OF    ELECTIONS.  121 

known  that  I  held  such  opinions.  I  pray  you,  therefore,  to  say 
nothing  about  it  out  of  your  own  household,  and  put  my  letter 
into  the  fire  when  you  have  read  it.  These  old  letters,  that 
remember  what  their  writers  have  forgotten,  are  great  nui- 
sances to  growing  politicians. 

But,  further,  I  object  to  the  proposed  change,  because  it 
breaks  down  the  distinction  that  should  be  carefully  main- 
tained between  the  virtuous  and  conscientious  poor,  who,  from 
a  sense  of  duty,  and  out  of  their  want,  and  not  their  abun- 
dance, contribute  their  mite  to  the  State,  and  the  idle  and 
profligate  poor,  who  feel  neither  the  duties  of  men  nor  the 
duties  of  citizens ;  — 

Because,  while  thus  thrusting  the  elective  franchise  upon 
those  who  have  not  earned  it,  do  not  deserve  it,  and  do  not 
want  it,  its  value  will  be  lessened,  and  the  number  of  those 
who  do  not  vote  at  all  —  now  alarmingly  large  —  will  be 
increased ;  — 

Because,  in  the  cities  and  large  towns,  at  least,  it  will  aim 
a  blow  at  the  efficiency  of  the  principle  of  registration.  At 
this  moment,  a  receipt  from  the  city  or  town  treasurer  is  the 
evidence  on  which  the  right  to  have  one's  name  on  the  voting- 
list  rests.  Take  that  away,  and  how  are  the  officers  charged 
with  that  duty  to  know  how  to  distinguish  the  resident  from 
the  stranger?  We  shall  be  flooded  with  voters  who  have  no 
right  to  vote. 

I  feel  strongly  upon  this  subject.  The  most  dangerous  dis- 
eases of  popular  governments  have  been  those  the  seat  of 
which  is  in  the  ballot-box.  Here  the  most  formidable  mischiefs 
have  begun  and  spread.  And  they  all  grew  from  this  root,  — 
from  the  headlong  zeal  of  struggling  political  partisans  to  gain 
some  immediate  and  present  end,  without  regard  to  the  effect 
upon  the  instruments  thus  used.  I  have  read  shocking  sto- 
ries about  elections  in  other  States ;  of  the  wholesale  and 
unblushing  corruption  of  voters,  and  of  the  scenes  of  brutality 
and  violence  at  the  polls.  If  half  those  stories  are  true,  may 
God  avert  such  doings  and  such  scenes  from  the  soil  of  Mas- 
sachusetts !  But  if  our  elections  have  been  pure,  if  they  have 
been  decently  conducted,  if  they  have  been  fair  expressions  of 
the  popular  will,  the  cause  is  to  be  sought  in  the  securities 
12 


12^  PLURALITY    RULE. 

and  immunities  which  we  enjoy,  and  which  those  States  do 
not.  And  can  you  wonder  that  I  feel  uneasy  at  the  prospect 
of  losing  one  of  these  securities  ? 

In  my  letter  on  the  secret  ballot,  I  called  your  attention  to 
the  fact,  that  that  mode  of  voting  did  not  extend  to  town  elec- 
tions. Please  now  to  take  note,  for  future  reference,  of  a  sim- 
ilar gross  inconsistency  upon  the  subject  of  my  present  letter. 
A  person  who  does  not  pay  a  poll-tax  may,  under  the  new 
Constitution,  vote  in  the  election  of  any  national  or  state 
officer;  but  not  in  the  election  of  any  dtp  or  town  officer. 
This,  too,  I  lay  aside  for  future  examination. 

Silas  Standfast. 


No.   VIII. 


My  dear  Jotham,  —  I  propose  in  my  present  letter  to  dis- 
cuss the  plurality  rule,  or  principle,  as  it  is  applied  in  the  new 
Constitution.  And  I  have  a  few  steps  to  take  before  I  come 
to  the  stairs. 

The  egg  from  which  the  Constitutional  Convention  was 
hatched  was  laid  in  the  General  Court  of  1852.  The  people 
had  voted,  in  1851,  that  they  would  not  have  a  Constitutional 
Convention.  But  the  friends  of  the  people,  the  exclusive, 
extra  friends  of  the  people,  came  to  the  conclusion,  either  that 
they  did  not  know  their  own  minds,  or  that  they  would  change 
them  in  the  course  of  a  twelvemonth.  Accordingly,  not  daunt- 
ed by  their  rebuff,  and  with  a  perseverance  worthy  of  the  saints, 
the  Coalition  Legislature  of  1852  determined  to  put  anew  to 
the  people  the  qtiestion  which  they  had  answered  in  the  neg- 
ative two  months  before.  Had  a  Whig  Legislature  thus 
presumed  upon  the  ignorance  or  fickleness  of  the  people,  — 
had  they  thus,  after  an  unfavorable  verdict,  demanded  a  new 
trial  before  the  same  jury,  —  what  an  airing  of  vituperative 
epithets  we  should  have  seen  on  the  lines  and  fences  of  Democ- 
racy !     But  it  is  comforting  to  behold  what  the  people  will 


PLURALITY    RULE.  123 

take  at  the  hands  of  their  friends.  The  voters  of  Massachu- 
setts, instead  of  showing  any  resentment  at  being  treated  like 
a  coquettish  damsel,  whose  first  faint  "  No  "  is  a  mere  gentle- 
man usher  to  a  "  Yes,"  vindicated  the  confidence  that  had 
been  reposed  in  their  changeableness,  —  ate  their  own  votes 
without  butter  or  sauce,  and  accepted  in  1852  what  they  had 
rejected  in  1851.  As  the  people  are  always  right,  it  follows, 
that  the  Constitution  did  not  need  any  amendments  in  1851, 
but  did  need  one  hundred  and  fifty  thousand  dollars'  worth  in 
1852.  What  a  degree  of  wear  and  tear  it  must  have  been  ex- 
posed to  in  the  interval,  to  get  so  much  out  of  repair  I 

But  to  go  back  to  the  General  Court  of  1852.  In  the  House 
of  Representatives,  January  7th,  it  was  ordered  that  a  com- 
mittee be  appointed,  to  consist  of  one  from  each  county,  with 
such  as  the  Senate  may  join,  to  take  into  consideration  the 
propriety  of  amending  the  Constitution,  so  as  (among  other 
things)  "to  make  the  plurality  system  apply  in  all  elections  for 
state  officers,  by  the  people.^^ 

In  due  time,  a  joint  committee  was  appointed,  and,  on  the 
21st  day  of  February,  made  an  elaborate  report,  in  which 
(among  other  things)  may  be  found  the  following  remarks  on 
the  plurality  system  :  — 

"  In  the  sixth  place,  we  recommend  the  adoption  of  the  plurality 
system  in  more  of  our  elections.  To  what  extent  the  Constitution 
should  be  revised  on  this  subject,  and  how  far  the  system  shall  be 
carried,  will  of  course  remain  for  the  Convention  to  settle.  Nor  do 
we  now  express  any  opinion  as  to  which  would  be  most  expedient,  if 
the  system  is  to  be  adopted,  to  apply  it  to  the  first,  or  only  the  sec- 
ond or  some  subsequent  election.  But  the  time  and  money  which  is 
now  expended,  and  the  party  animosity  which  is  engendered,  by  the 
numerous  and  unsuccessful  attempts  to  elect  the  various  state,  county, 
and  town  or  city  officers,  have  become  grounds  of  repeated  and  loud 
complaints  in  all  portions  of  the  Commonwealth.  This  part  of  the 
Constitution  should  undergo  a  thorough  revision  ;  it  should  be  done,  not 
rashly,  but  with  great  care  and  deliberation."  —  p.  13. 

"  The  present  cumbersome,  formal  mode  of  organizing  the  govern- 
ment should  be  abolished The  election  of  Secretary  of  the 

Commonwealth ,  Treasurer  and  Receiver-General,  Auditor  of  Ac- 
counts, and  Executive  Councillors  by  the  people,  with  an  application 


124 


MULTIPLICATION    OF    PARTIES. 


of  the  plurality  principle  to  these  officers,  as  well  as  to  the  Governor^ 
Lieutenant-Governor,  and  Stale  Senators,  would  do  much  to  remedy 
this  evil."  —  p.  14. 

This  report  is  signed  by  Whiting  Griswold,  Anson  Burlin- 
game,  Moses  Wood,  Isaac  Davis,  R.  C.  Brown,  Martin  Bri- 
ant,  John  B.  Nichols,  Samuel  C.  Pomeroy,  William  W. 
Bacon,  William  Cleverly,  and  John  W.  Simonds.  Of  these, 
Messrs.  Griswold,  Burlingame,  Davis,  Cleverly,  and  Simonds 
were  members  of  the  Convention. 

Now,  you  prefer,  and  I  prefer,  and  all  men  of  common 
sense  brought  up  in  Massachusetts  prefer,  the  majority  rule, 
whenever  and  so  long  as  it  is  practicable  and  possible.  The 
rule  that  the  majority  shall  govern,  lies  at  the  foundation  of  all 
democratic  governments.  No  man  will  give  it  up  without 
reluctance,  or  without  a  struggle.  So  long  as  it  works  well, 
no  question  would  ever  arise  upon  the  subject.  So  much  for 
the  rule  as  a  matter  of  principle. 

Now  look  at  it  historically  for  a  moment.  During  a  long 
period  it  sufficed  for  the  government  of  Massachusetts.  Your 
memory  goes  back  to  the  days  of  the  Federal  and  Democratic 
parties ;  and  there  must  have  been  a  solid  satisfaction  in 
those  days,  when  there  was  a  fair  stand-up  fight  between  two 
sets  of  principles  and  two  sets  of  men,  —  when  every  one  saw 
his  foes  drawn  up  in  front  of  him,  and  his  friends  ranged  along 
his  side,  and  there  was  no  danger  of  a  fire  in  the  rear,  or  of 
having  his  flank  turned  by  false  allies.  In  those  days  they 
knew  no  more  about  third  parties  than  they  did  about  spiritual 
rappings  or  women's  conventions;  and  a  man  no  more  threw 
away  his  vote,  than  Daniel  Boone  would  have  thrown  away 
his  fire  in  an  Indian  fight,  with  a  red-skin  behind  every  tree. 
Whoever  had  a  plurality  had  a  majority  also. 

But  a  change  came  over  the  spirit  of  our  politics.  That 
change  began  with  the  Anti-Masonic  party,  about  thirty  years 
ago,  the  seed  of  w^hich  was  the  blood  of  Morgan.  In  time, 
other  eccentric  and  portentous  bodies  intruded  themselves  into 
the  regular  political  system,  and  disturbed  its  movements. 
There  was  the  Liberty  party,  the  Temperance  party,  and  the 
Native  American  party ;  and  now  we  have  the  Hunkers  and 
the  Barnburners,  the   Hard  Shells  and  the   Soft  Shells,  the 


PLURALITY  RULE  INEVITABLE.  1^ 

Free  Democrats  and  the  Democrats  who  are  not  free ;  so  that 
our  political  contests,  instead  of  being  a  pitched  battle  be- 
tween two  lines,  are  like  an  Irish  row  at  Donnybrook  Fair, 
where  every  man's  shillelah  is  against  every  other  man's 
head. 

The  result  was,  that  the  majority  rule  would  not  work. 
You  could  not  elect  your  Governor,  or  set  the  wheels  of  state 
agoing.  What,  then,  was  to  be  done  ?  And  this  question 
reminds  me  of  a  pertinent  anecdote.  A  clergyman  was  once 
called  to  administer  the  consolations  of  religion  to  a  lady, 
who  had  had  the  misfortune  to  lose  one  of  her  children.  He 
found  her  in  by  no  means  an  evangelical  state  of  mind.  She 
was  rebellious,  inconsolable,  mutinous.  She  was  deaf  to  the 
voice  of  consolation,  and  repulsed  the  soothings  of  sympathy. 
The  good  man  had  something  of  the  old  Adam  in  him,  and 
his  patience  gradually  gave  way ;  and  after  a  burst  of  clamor- 
ous and  unreasonable  grief,  he  said  to  her,  quietly,  "  Well, 
madam,  what  are  you  going  to  do  about  it  ?  " 

This  story  often  comes  to  my  mind ;  not  only  in  public 
affairs,  but  in  that  little  "  kingdom  of  me  "  that  a  quaint  old 
writer  speaks  of.  The  inexorable  question,  —  What  are  you 
going  to  do  about  it  ?  —  is  always  in  my  way.  It  is  a  great 
iron  wall,  that  goes  up  to  the  sky  and  down  to  the  centre ;  I 
cannot  get  over  it,  or  around  it,  or  under  it.  There  is  but  one 
thing  that  I  can  do,  and  that  is,  submit.  That  lesson  I  am 
learning,  and  I  flatter  myself  that  I  am  making  some  progress 
therein.  At  least,  I  do  not  knock  my  head  against  the  wall, 
as  I  used  to. 

Now,  apply  this  question  to  the  subject  before  us.  You 
must  have  a  Governor,  and  you  cannot  have  him  by  a  majority 
rule,  and  what  are  you  going  to  do  about  it  ?  The  Constitu- 
tion —  our  present  Constitution  —  answers  this  question.  It 
provides  that,  in  the  failure  of  the  popular  choice,  the  Gov- 
ernor and  Lieutenant-Governor  shall  be  chosen,  and  the  va- 
cancies in  the  Senate  shall  be  filled,  by  the  joint  action  of  the 
Legislature.  I  need  not  tell  you  the  particular  modes ;  be- 
cause the  difficulty  is  so  constantly  happening,  that  every  one 
is,  unhappily,  familiar  with  the  constitutional  remedy.  But 
here  the  Constitution  stops.  It  takes  no  heed  to  the  va- 
12* 


126  PLURALITY    RULE    INEVITABLE. 

cancies  in  the  House  of  Representatives.  It  takes  it  for 
granted,  that  a  quorum  of  sixty  members  will  alv^rays  be 
elected,  and  rests  contented  with  that. 

Thus,  you  will  observe,  that,  as  regards  the  Governor, 
Lieutenant-Governor,  and  Senators,  the  Constitution  pre- 
scribes an  alternative  mode  of  election.  In  the  failure  of  a 
choice  by  a  majority  of  the  popular  votes,  it  requires  them  to 
be  elected  by  a  purely  arbitrary  and  artificial  method.  It 
says,  in  effect,  in  regard  to  these  officers,  that  they  must  be 
had,  whether  or  no ;  and  if  you  cannot  have  them  in  one  way, 
you  must  have  them  in  another. 

Now,  the  positions  I  have  been  coming  to  are  these :  that 
where  the  Constitution  requires  us,  in  case  of  need,  to  throw 
aside  the  majority  rule  and  take  up  some  other,  we  are  bound 
to  consider  the  comparative  value  of  different  substitutes,  and 
take  that  which  comes  nearest  to  the  majority  rule,  —  that 
which  is  simplest  and  best ;  and  that  a  plurality  of  votes  is  a 
better  expression  of  the  popular  will  than  the  present  mode  of 
election  by  the  Legislature. 

Take  the  case  of  the  Governor.  There  are  three  candidates 
in  the  field,  and  the  whole  number  of  legal  voters  is  one  hun- 
dred and  eighty  thousand.  But  the  highest  candidate  has 
only  fifty  thousand  votes ;  the  second  has  but  forty  thousand ; 
and  the  third  has  but  thirty  thousand.  You  perceive,  there- 
fore, that  sixty  thousand  voters  have  not  voted  at  all,  and  that, 
if  you  carried  out  the  majority  rule  to  its  absolute  extent,  you 
should  require  the  successful  candidate  to  have  ninety-one 
thousand  votes.  In  point  of  fact,  no  Governor  of  Massachu- 
setts was  ever  chosen  by  a  majority  of  all  the  existing-  voters. 
Thus,  the  first  modification  of  the  abstract  majority  rule  is  to 
allow  the  officer  to  be  chosen  by  a  majority  of  all  the  persons 
actually  voting: 

But  to  go  back  to  the  case  I  have  just  supposed,  where 
there  are  three  candidates,  and  there  is  no  choice ;  what  are 
you  going  to  do  about  it,  inasmuch  as  you  must  have  your 
Governor?  I  submit  it  to  you,  —  I  submit  it  to  any  candid 
person, — ^^that  the  best  way  is  to  take  the  man  who  has  the 
highest  number  of  votes,  because  you  have  hereby  the  strong- 
est expression  of  the  popular  will  that  it  is  possible  to  obtain. 


PARTY    TRICKS.  127 

But  by  sending  all  the  three  to  the  General  Court,  it  often 
happens  that  he  who  has  the  smaller,  or  even  the  smallest 
number  of  votes,  —  whom  the  people  least  want,  —  is  made 
Governor.  This  is  wrong,  unjust,  fraudulent.  The  Constitu- 
tion never  intended  it.  But  it  has  been  done  again  and 
again. 

Now,  what  have  the  Convention  done  ?  They  have  divided 
the  State  into  forty  Senatorial  districts,  and  provided  that 
Senators  be  elected  by  a  plurality  of  votes.  So  far,  so  good. 
Could  we  have  a  chance  to  vote  on  this  alone,  we  should  all 
of  us  be  thankful  to  take  it. 

But  then  they  have  provided,  also,  that  not  only  the  Gov- 
ernor and  Lieutenant-Governor,  but  the  Secretary,  Treasurer, 
Auditor,  and  Attorney-General  (the  election  of  whom  is 
transferred  to  the  people),  shall  all  be  chosen  by  a  majority  of 
popular  votes,  and  that  in  default  thereof  they  shall  all  be 
chosen  by  the  General  Court,  in  the  same  way  that  the  Gov- 
ernor and  Lieutenant-Governor  now  are.  And  they  have  also 
allowed  the  Legislature  to  modify  this  rule,  with  a  restriction 
as  to  thertime  when  their  law  shall  go  into  effect,  postponing 
its  action  for  a  year.  In  my  judgment,  this  course  of  the 
Convention  was  a  mere  parti/  trick.  It  was  in  palpable  dis- 
regard of  the  teachings  of  the  last  ten  years,  and  of  the 
known  and  reasonable  wishes  of  the  people.  It  was  an  ob- 
stinate adherence,  for  party  purposes,  to  a  rule  —  the  majority 
rule,  I  mean  —  which  they  knew  could  not  be  applied.  It 
was  contrary  to  the  express  promises  and  professions  of  the 
very  men  through  whose  agency,  and  urgency  to  procure  the 
plurality  system,  the  Convention  was,  among  other  reasons, 
called.  The  public  sentiment  is,  as  they  know,  unequivocally 
in  favor  of  applying  this  system  to  all  State  elections;  and 
the  people  had  a  right  to  expect,  from  the  report  of  the  legis- 
lative committee,  from  which  I  have  quoted,  that  it  would  be 
so  applied.  Those  who  voted  for  the  Convention  voted  for  it 
with  this  expectation.  They  have  been  cajoled,  deceived, 
cheated,  and  jilted  by  their  pretended  friends  and  lovers,  and 
they  have  now  a  fair  right  of  action  against  the  signers  of  that 
report,  for  breach  of  promise  of  plurality.  The  object  of  the 
whole  has  been  to  give  the  leading  offices  of  the  State  to 


128  PARTY    TRICKS. 

men  who  can  get  neither  a  majority  nor  a  plurality  of  the 
votes  of  the  people,  —  to  men  who  can  get  only  a  minority  of 
the  votes,  —  in  short,  to  themselves. 

When  I  was  a  boy,  one  of  my  schoolfellows  got  up  a  lot- 
tery. The  tickets  were  ninepence  apiece,  and  quite  a  tempt- 
ing list  of  prizes  was  offered.  Many  tickets  were  sold,  but 
the  prizes  were  not  forthcoming.  When  the  manager  was 
remonstrated  with  on  account  of  the  delay,  he  said  they  had 
concluded  not  to  draw.  So  the  plurality  rule  was  one  of  the 
prizes  in  the  Convention  lottery,  but  when  the  managers  got 
together,  they  concluded  not  to  draw. 

I  am  well  aware  that  this  new  Constitution  allows  the 
Legislature  to  modify  the  action  of  the  Convention  on  the 
subject  of  majority  and  plurality,  so  far  as  state  officers,  repre- 
sentatives, and  city  and  town  officers  are  concerned.  They  have 
shifted  their  responsibility,  and  opened  a  back-door  of  escape, 
in  a  similar  manner,  upon  the  system  of  representation.  To 
these  acts  of  the  Convention  I  reply  :  — 

First,  that  they  had  no  legal  right  to  do  so.  The  members 
of  the  Convention  were  hired,  at  a  great  price,  to  amend  the 
Constitution,  and  they  had  no  right  to  devolve  their  work 
upon  another  set  of  public  servants.  It  is  a  well-known  prin- 
ciple, that  an  agent  or  attorney  cannot  depute  his  powers  to 
another,  unless  authorized  to  do  so  by  the  instrument  from 
which  his  own  authority  is  derived. 

Second,  that  we  have  now  a  mode  of  amending  the  Con- 
stitution by  the  action  of  two  successive  Legislatures  and  the 
confirmation  of  the  people,  —  which  is  a  far  better  method 
than  the  vote  of  a  single  Legislature. 

Third,  that  a  Legislature  chosen  under  the  outrageous  and 
iniquitous  system  which  the  Convention  have  devised,  will  be 
no  fair  expression  of  the  popular  mind,  and  that  the  same 
motives  which  were  controlling  impulses  in  the  Convention 
will  be  controlling  impulses  in  the  Legislatures  elected  under 
the  new  Constitution  —  if  it  be  adopted. 

Silas  Standfast. 


TOWNS    AND    CITIES.  129 


No.   IX. 

My  dear  Jotham,  —  Let  us  now  look  back  a  little.  I 
have  asked  you  to  bear  in  mind  the  capricious  action  of  the 
Convention  in  regard  to  the  secret  ballot  and  the  tax  qualifi- 
cation, and  their  disregard  of  public  sentiment  and  their  own 
previous  professions  in  respect  to  the  plurality  rule.  I  told 
you  that  I  would  endeavor  to  find  a  reason  for  conduct  which 
seemed  so  unreasonable,  —  to  explain  what  seemed  so  inex- 
plicable. I  am  now  ready  to  do  so,  for  I  have  now  got  my 
birds  in  a  line,  and  can  fire  at  them  together. 

In  the  application  of  the  secret  ballot,  a  distinction  is  made 
between  cities  and  towns.  A  maybr  is  chosen  by  envelopes, 
and  a  selectman  by  open  and  unfolded  votes.  A  man  that 
lives  on  one  side  of  a  street  must  go  to  the  polls,  armed  and 
equipped  with  brown  paper  and  gluten  ;  while  his  neighbor, 
on  the  opposite  side,  has  only  his  vote  to  deposit.  But  the 
proper  distinction  between  a  city  and  a  town  is  only  in  degree, 
and  not  in  kind.  It  is  simply  this  :  that,  after  a  place  has 
reached  a  certain  size,  it  is  more  convenient  to  have  a  mayor 
and  aldermen  to  look  after  its  interests  than  a  board  of  select- 
men. The  voters  are  men  of  the  same  infirmities,  and  ex- 
posed to  the  same  influences,  in  both  cases.  In  principle, 
every  argument  in  behalf  of  the  secret  ballot  which  suits  the 
pavements  suits  also  the  fields.  If  the  secret  ballot  is  bad  in 
the  village,  it  is  bad  in  the  city ;  if  good  in  the  city,  it  is  good 
in  the  village.  Town  meetings  are  often  the  scenes  of  the 
most  angry  contests ;  the  passions  of  men  are  most  kindled 
by  what  lies  nearest  them ;  tempests  in  tea-pots  often  rage  so 
as  to  blow  the  lid  clean  off.  There  was  once  a  town  —  now 
a  city — which  was  convulsed  to  the  centre  upon  the  question, 
whether  a  certain  bell  should  be  rung  at  a  certain  hour.  The 
war  of  the  bell  was  nearly  as  exciting  as  that  of  the  bucket, 
in  Italian  history.  There  was  no  bloodshed,  but  a  great  deal 
of  ink-shed  and  a  vast  deal  of  breath-shed. 

The  only  argument  urged  in  support  of  this  irrational  and 


130 


INCONSISTENCY. 


invidious  distinction  is  the  argument  from  inconvenience.  It 
is  said,  that,  as  town  officers  are  elected  singly,  it  would  be 
extremely-  troublesome  to  deposit,  open,  and  count  so  many 
sealed  envelopes.  To  this  there  are  several  answers.  In  the 
first  place,  there  is  no  law,  and  no  reason,  why  towns,  after 
choosing  a  moderator  and  town  clerk,  should  not  elect  their 
other  officers  on  one  ticket ;  and,  in  point  of  fact,  many,  if  not 
most,  of  the  large  towns  do  so.  Where  the  town  is  small 
and  the  voters  few,  it  would  not  be  inconvenient  to  count  the 
votes  though  in  envelopes.  In  the  second  place,  it  is  from 
the  friends  of  the  law  that  we  are  always  hearing  it  pro- 
claimed that  principles  should  be  maintained  in  spite  of  incon- 
veniences in  the  application  of  them  ;  and  it  does  not  become 
them  to  blow  hot  and  cold  with  the  same  mouth.  In  the 
third  place,  the  most  zealous  friends  of  the  secret  ballot  deny 
its  inconvenience,  without  exception  or  qualification.  I  like 
to  get  my  powder  out  of  the  enemy's  magazine ;  and  there- 
fore I  shall  quote  a  few  sentences  on  this  point  from  Mr.  Am- 
asa  Walker,  and  with  the  more  pleasure  because  he  is  an 
honest  man,  and  I  believe  that  he  believes  what  he  says.  He 
said  in  the  Convention:  ^'' I  can  conceive  that  it  will  greatly 
facilitate  the  business  of  town  meetings^  lohen  the  people  get 
accustomed  to  it.  In  voting  for  selectmen,  for  example,  a  gen- 
eral ticket  might  be  used.  All  the  names  might  be  put  upon 
one  ticket,  and  the  candidates  be  all  elected  at  once.  Asses- 
sors, too,  might  be  voted  for  in  the  same  manner.  It  will  en- 
able people  in  the  country^  in  their  town  meetings,  to  elect  ojfi- 
cers  more  rapidly  and  more  conveniently.^'*  Now,  Mr.  Amasa 
Walker  is  the  lather  of  the  secret  ballot,  and  ought  to  know 
what  it  is. 

In  the  same  capricious  and  arbitrary  way,  the  Convention 
have  dealt  with  the  relation  between  the  payment  of  a  poll- 
tax  and  the  right  to  vote.  The  non-payer  may  vote  in  any 
state  or  national  election,  but  not  in  any  city  or  town  election. 
He  may  vote  for  a  governor,  but  not  for  a  mayor ;  he  may 
vote  for  a  representative  in  Congress,  but  not  for  a  selectman. 
Why  is  this  distinction  made  ?  Why  do  not  the  sympathies 
of  democracy  go  with  the  poor  voter  to  the  end  ?  If  his  ex- 
clusion is  wrong  in  the  one  case,  how  comes  it  to  be  right  in 


INJUSTICE.  131 

the  other  ?  Why  give  him  in  one  month  what  he  must  pay 
for  in  another  ?  A  plain,  poor  man  comes  to  the  polls  in 
November,  and  deposits  his  vote,  and  no  questions  are  asked. 
He  comes  again  in  December  or  March,  and  the  door  is 
slammed  in  his  face.  Why  is  his  reception  so  different  in  the 
two  periods  ?  I  have  heard  it  said  that  democracy  is  "  the 
supremacy  of  man  over  his  accidents."  But  this  is  the  su- 
premacy of  accidents  over  the  man  ! 

And  on  what  ground  is  this  distinction  defended  ?  It  is 
this :  that  the  votes  thrown  at  town  meetings  and  municipal 
elections  act  upon  the  appropriation  and  expenditure  of  money, 
and  that  the  man  who  has  not  contributed  towards  the  gen- 
eral fund  is  not  fit  to  have  a  voice  in  the  disposal  of  it.  That 
is,  a  man  may  take  part  in  the  government  of  the  State  or 
common  country,  and  have  a  voice  in  the  most  momentous 
questions,  —  the  most  vital  and  comprehensive  interests,  —  and 
yet,  when  it  comes  to  the  spending  of  a  few  dollars,  he  shall 
not  be  trusted.  Then  his  lips  are  sealed,  and  his  hands  are 
tied.  This,  mind  you,  is  the  Democratic  doctrine.  It  is  put 
forth  by  the  friends  of  the  people,  who  are  ever  exalting  the 
virtues  of  the  poor,  and  vituperating  every  Whig  writer  and 
speaker  who  ventures  to  doubt  whether  the  men  now  excluded 
from  voting  are  absolutely  an  army  of  saints  and  martyrs, 
marching,  as  Dickens  says,  "right  slap  to  heaven,  and  iio 
questions  asked." 

Look  at  the  injustice  and  absurdity  of  the  exclusion.  The 
poor  man's  interest  in  town  affairs  —  and  especially,  if  he 
have  children,  in  school  affairs  —  is  immediate,  direct,  and 
personal ;  in  state  and  national  concerns,  comparatively  re- 
mote and  indirect.  Thus,  by  keeping  him  out  where  he  most 
wants  to  go,  you  wound  him  where  he  is  most  sensitive.  Be- 
sides, a  town  meeting  has  a  certain  domestic,  almost  a  family 
character.  Exclude  a  man  from  this,  and  you  set  a  sort  of 
brand  upon  him  which  all  his  neighbors  must  needs  see. 
They  are  asked  to  the  feast  of  business,  but  he  is  forbidden  to 
come.  These  little  things,  which  touch  men  in  their  most 
intimate  and  familiar  relations,  are  the  most  keenly  felt. 
Every  man  likes  to  hold  up  his  head  among  his  neighbors. 
My  life  upon  it,  if  you  should  ask  the  poor  men  in  your  town 


132 


PARTISAN    CONVENTION. 


which  they  would  value  the  more,  —  the  right  of  voting  in 
town  meetings,  about  common  affairs  and  school  affairs,  or 
the  right  of  voting  for  state  officers,  nine  out  of  ten  will  tell 
you,  the  former.  They  are  more  interested  in  them,  —  they 
understand  them  better,  —  they  are  better  fitted  to  vote  about 
them. 

And  now,  my  dear  Jotham,  I  ask  you  again,  why  the 
Constitution,  in  which,  more  than  any  other  human  code, 
uniformity  and  consistency  are  requisite,  is  such  a  piece  of 
tessellated  work,  with  here  a  bit  of  black  stone  and  there  a  bit 
of  white;  here  a  bit  of  sympathy  and  there  a  bit  of  thrift; 
here  a  bit  of  tenderness  and  there  a  bit  of  rigor ;  here  a  smile 
of  invitation  and  there  a  frown  of  repulsion  ;  here  a  dab  of 
gluten  and  there  a  fold  of  paper. 

And  why  were  the  Convention  so  indifferent  to  the  de- 
mands of  public  sentiment  on  the  subject  of  the  plurality  rule  ? 
why  did  they  cling  to  an  inconvenience  which  twenty-five 
States  have  abandoned  ?  why  did  their  leaders  eat  their  own 
words  ?  why  did  they  load  a  gun  to  the  muzzle  with  'profes- 
sions^ and  then  refuse  to  pull  the  trigger  ? 

When  we  talked  about  the  proposed  Convention,  last  year, 
I  told  you  that  a  Convention  to  be  called  under  such  condi- 
tions —  struck  out  from  the  fiery  struggle  of  heated  parties, 
like  a  spark  from  the  collision  of  flint  and  steel  —  must  of  ne- 
cessity be  a  partisan  Convention,  reflecting  the  passions  of  the 
State,  and  not  its  reason  ;  and  that  in  such  a  body  you  could 
no  more  deliberate  with  caution  and  wisdom  upon  constitu- 
tional reform,  than  you  could  experiment  upon  the  composi- 
tion of  gunpowder  in  the  midst  of  a  battle.  It  was  on  that 
ground,  mainly,  that  I  voted  against  the  Convention. 

My  fears  were  prophetic.  The  Constitutional  Convention 
proved  a  partisan  body ;  and  its  partisan  zeal  was  inflamed  by 
the  consideration  that,  while  the  Coalitionists  had  a  majority 
in  the  Convention,  the  Whigs  had  a  majority  in  the  Legisla- 
ture, which  sat  a  fortnight  after  the  Convention  had  assembled, 
and  in  the  same  hall.  The  first  act  of  the  Convention  — 
their  vote  upon  the  form  of  notice  to  the  town  of  Berlin  — 
was  a  paltry  and  contemptible  expression  of  party  passion. 
The  whole  Commonwealth  of  Massachusetts  set  in  motion,  to 


PARTY    CONSTITUTION.  133 

compel  the  little  town  of  Berlin  to  use  self-sealing  envelopes ! 
The  posse  comitatns  called  out  to  catch  a  truant  boy  !  Sher- 
man's Artillery  summoned  to  smoke  a  woodchuck  out  of  his 
hole!  And  as  was  the  beginning,  so  was  the  end.  In  the 
purposes  at  which  they  aimed,  —  in  the  motives  which  guided 
them,  —  the  Convention  was  an   eminently  consistent  body, 

—  a  party  Convention  to  the  last. 

Now,  upon  the  subject  of  party,  I  profess  to  be  no  better 
than  my  neighbors.  I  am  a  party  man.  I  call  a  party  an 
association  of  men,  of  substantially  the  same  way  of  thinking 
in  politics,  who  act  together  in  order  to  accomplish  certain 
desirable  political  ends,  which,  otherwise,  cannot  be  attained. 
I  believe  in  the  necessity  of  party  organization,  party  disci- 
pline, and  party  drill.  And,  in  the  proper  place,  and  at  the 
proper  time,  I  have  no  objection  to  a  rough-and-tumble  party 
fight.     I  am  ready  to  give  and  to  take,  —  to  hit  and  to  be  hit, 

—  to  lay  on  and  not  to  flinch.  But  a  Constitutional  Conven- 
tion is  no  place  for  party  zeal  or  party  contests.  They  are  as 
much  out  of  place  there  as  jokes  at  a  funeral,  or  a  country 
dance  in  the  broad  aisle  of  a  church. 

You  are  aware  of  the  present  coalition  of  parties  in  the  State 
of  Massachusetts.  Tliis  is  a  fixed  fact,  or  what  somebody 
calls  a  perfect  fact ;  or,  as  the  French  say,  an  accomplished 
fact.  This  Coalition  had  a  majority  of  about  a  hundred  in 
the  Convention  ;  and  that  was  a  very  stubborn  fact.  They 
had  every  thing  their  own  way,  and  that  was  a  very  comforta- 
ble and  exhilarating  state  of  things  —  for  them,  at  least.  And 
so  it  came  to  pass  that  they  took  counsel  among  themselves, 
how  they  could  so  amend  the  Constitution  as  to  extract  from  it 
the  means  of  preserving"  and  transmitting-  their  own  power  in 
lineal  descent.  They  were  to  make  a  staff  which  should  sup- 
port the  steps  of  the  Commonwealth,  but  at  the  same  time 
have  a  dagger  inside,  with  which  to  slay  the  Whig  party.  So 
there  were  two  sets  of  motives  at  work,  which  sometimes 
crossed  each  other's  path  and  stood  in  each  other's  way  to 
such  a  degree,  that  more  than  once  the  machinery  got  out  of 
gear  and  threatened  to  come  to  a  dead  lock.  To  drive  a  tan- 
dem team  of  motives  is  not  very  easy.  Where  you  are  keep- 
ing one  eye  on  the  pot  over  the  fire,  that  it  may  not  boil  over, 
13 


134  PARTY    CONSTITUTION. 

and  another  out  of  the  window,  that  the  pigs  may  not  get  into 
the  garden,  a  perplexing  conflict  of  duties  will  arise,  unless 
there  be  a  perfect  understanding  between  the  pot  and  the  pigs, 
which  is  a  rare  thing. 

Now  the  Coalition  is  stronger  in  the  small  towns,  as  a  gen- 
eral rule,  than  in  the  cities ;  an4  thus,  in  the  Convention,  the 
small  towns  were  to  be  petted,  and  coaxed,  and  bribed,  and 
bought.  This  was  especially  the  case  in  the  apportionment 
of  representatives,  and  it  was  the  same  in  other  matters.  The 
"rural  districts"  basked  in  their  smiles,  but  the  cities  lan- 
guished in  the  shadow  of  their  frowns.  A  tone  of  sentiment 
was  attempted  to  be  created  by  comparison  between  the  two, 
always  unfavorable  to  the  cities.  Boston,  especially,  was 
decried,  disparaged,  ridiculed,  and  denounced.  A  sneer  or 
fling  at  Boston  was  always  a  hit  in  debate ;  especially  if  it 
fell  from  the  lips  of  one  of  her  own  sons.  The  flavor  of  injus- 
tice was  heightened  by  the  sauce  of  ingratitude. 

But  the  farmers  in  the  small  towns  and  "rural  districts," 
as  you  well  know,  do  not  like  the  secret  ballot,  because  it  is 
not  manly,  and  because  it  is  a  new-fangled  innovation  which 
they  do  not  understand.  And  they  are  opposed  to  the  aboli- 
tion of  the  poll-tax,  as  a  condition  precedent  to  voting,  be- 
cause they  know  that  in  that  event  they  shall  lose  all  that  is 
now  collected  from  that  source.  So  the  farmers  were  satis- 
fied with  having  both  of  these  changes  kept  out  of  their  town 
meetings  and  town  deliberations ;  and  as  to  the  poll-tax,  the 
cities  were  obliged  to  be  included,  because  not  even  the  spec- 
tacles of  the  Convention  could  find  any  distinction  between 
towns  and  cities  on  this  point. 

So  the  party  eagerness  to  preserve  the  Coalition  explains 
the  capricious  and  contradictory  action  of  the  Convention  on 
the  subject  of  plurality.  It  takes  three  parties  to  make  a  po- 
litical coalition,  as  certainly  as  it  takes  two  men  to  make  a 
bargain.  But  the  plurality  rule  would  make  it  as  impossible 
for  a  third  party  to  live,  as  for  a  rat  to  breathe  in  an  exhausted 
receiver.  The  leaders  of  the  Convention  knew  this,  and  re- 
coiled from  the  gulf  of  self-immolation,  as  they  drew  near  to 
it.  Apply  the  plurality  rule  to  Stale  elections,  and  the  Coali- 
tion loses  Us  whole  stock  in  trade  and  must  needs  shut  up  sliop. 


TRADING    FOR    OFFICES.  135 

While  the  majority  rule  is  preserved,  and  the  three  parties 
continue,  —  and  the  existence  of  the  rule  insures  the  contin- 
uance of  the  parties,  —  the  Governor,  Lieutenant-Governor, 
and  the  other  State  officers  made  elective  by  the  people  under 
the  new  Constitution,  will  all,  at  last,  come,  by  a  standing 
abuse,  contrary  to  the  seeming  purpose  of  the  Constitution, 
to  be  elected  by  the  Legislature ;  and  then  will  recur,  and  be 
prolonged  to  the  end  of  the  chapter,  these  edifying  scenes  of 
barter,  traffic,  and  distribution,  which  reflected  so  much  dis- 
honor upon  the  State  of  Massachusetts  in  1851.  Then  we 
shall  see,  year  after  year,  a  knot  of  men  in  one  wing  of  the 
State-House,  sitting  on  a  platform  made  at  Buffalo,  and  an- 
other knot  of  men  in  another  wing  of  the  State-House,  sitting 
on  a  platform  made  at  Baltimore,  and  a  set  of  office-brokers 
running  between  the  two  to  negotiate  and  bargain.  There 
will  be  a  price-current  of  offices,  as  there  is  of  fancy  stocks. 
One  day  a  United  States  Senator  will  be  worth  a  Governor 
and  an  Attorn ey- Ge n eral ;  and  the  next,  only  a  Governor  and 
an  Auditor.  Honors  and  offices,  which  should  imply  and 
prove  popular  confidence  and  reward  public  service,  will  be 
distributed  according  to  the. will  of  a  few  trading  politicians ^ 
and  the  Legislature  will  be  merely  called  upon  to  register  their 
edicts. 

And  now,  my  dear  Jotham,  I  am  going  to  prove  what  I 
have  said ;  and  I  am  going  to  prove  it  by  putting  two  wit- 
nesses of  the  opposite  party  on  the  stand. 

The  debate  in  the  Convention  on  the  plurality  question 
began  on  the  24th  day  of  May,  on  the  report  of  the  Commit- 
tee on  Elections,  applying  the  plurality  rule  to  all  elections 
by  the  people.  The  debate  continued,  with  some  few  inter- 
ruptions of  other  subjects,  till  the  first  day  of  June,  when,  on 
motion  of  Mr.  Butler,  the  whole  subject  was  referred  to  a 
committee  of  one  from  each  county,  which  committee  was 
appointed  the  next  day. 

That  committee  did  not  report  till  the  27th  day  of  June ; 
and  their  report  embraced  substantially  the  provisions  which 
the  Convention  finally  adopted. 

The  subject  was  not  reached  in  the  order  of  debate  till  the 
18th  day  of  July.     In  this  debate  Mr.  Schouler  moved  an 


136  TRADING    FOR   OFFICES. 

amendment,  applying  the  plurality  rule  to  the  Governor,  Lieu- 
tenant-Governor, Secretary,  Treasurer,  Auditor,  and  Attorney- 
General.  On  the  19th  day  of  July  the  question  was  taken  on 
the  amendment  in  the  Convention,  and  one  hundred  and  fifty- 
nine  members  voted  for  it,  and  one  hundred  and  fifty-nine 
against  it,  and  the  President  then  voted  in  the  negative.  Here 
it  may  be  remarked  that  the  one  hundred  and  fifty-nine  who 
voted  in  the  affirmative,  represented  a  constituency  greater  by 
one  hundred  and  fifty  thousand  souls  than  those  who  voted  in  the 
negative.  The  resolves  reported  by  the  committee,  amended 
in  respect  to  representatives  to  the  General  Court,  were 
passed  July  22d. 

And  now  I  propose  to  call  my  witnesses ;  and  the  first  one 
I  put  upon  the  stand  is  Mr.  Caleb  Stetson,  a  member  of  the 
Convention  from  Braintree,  an  old-fashioned  Democrat,  who 
has  never  bowed  the  knee  to  the  Baal  of  Coalition,  a  man  of 
practical  sense,  a  successful  man  of  business,  honest  and  up-* 
right  in  all  his  ways  and  works.  He  was  in  favor  of  the  plu- 
rality rule  in  State  elections.  On  the  22d  day  of  July  he 
made  a  short  speech  in  the  Convention,  from  which  I  quote  a 
few  sentences:  — 

"  I  am  free  to  admit,  myself,  that  1  believe  that  such  legislation  as 
has  been  had  in  this  body  is  disreputable  ;  and  if  I  understand  any 
thing  of  the  character  and  feelings  of  the   people  of  Massachusetts, 

they  will  never  sanction  the  tergiversation  of  this  body Sir, 

the  changes  which  have  been  made  upon  this  floor,  from  time  to  time, 
by  the  leaders  of  the  Free  Democracy  of  this  body,  and  by  those  who 
are  called  the  True  Democracy,  have  been  such,  that  I  think,  had  any 
spectator  been  in  the  gallery,  viewing  the  doings  of  this  Convention, 
they  could  not  but  suppose  that  the  brains  of  some  of  such  leaders 
were  hung  upon  a  weathercock.  It  appears  to  me  that  certain  mem- 
bers have  lost  sight  of  the  purposes  for  which  they  were  sent  here. 
They  appear  to  have  hut  one  purpose^  and  that  is,  the  making  of  po- 
litical capital  for  themselves,  and  to  lose  sight  entirely  of  the  objects, 
or  the  purposes,  for  which  this  Convention  was  called.^'* 

My  next  witness  is  Mr.  Edward  L.  Keyes,  who  sat  in  the 
Convention  for  Abington,  —  a  Free-Soiler  and  seceder  from 
the  Whig  party,  —  a  man  of  fervid  spirit  and  impetuous  tern- 


VICAR    OF    BRAY.  137 

perament,  —  an  impassioned  and  powerful  speaker,  —  of  a 
mutinous  mood,  not  always  docile  to  party  dictation,  —  and 
sometimes  disconcerting  his  friends  by  his  explosive  rhetoric. 
Immediately  after  the  tie  vote  I  have  mentioned  on  the  plu- 
rality question,  on  the  19th  day  of  July,  and  the  President's 
negative  vote,  he  said  as  follows  :  — 

"  I  must  confess,  however,  my  surprise  at  the  vote  just  taken  ;  and 
while  I  am  filled  with  surprise,  I  must  also  be  allowed  to  express  my 
gratification  at  the  fact,  that  this  Convention  has  been  saved  from  last- 
ing disgrace  by  the  casting  vote  of  the  Chairman  ;  for  had  we  lost 
this  question,  what  should  we  not  have  lost  7  Every  thing.  The  Lib- 
erty-party in  the  Convention  would  have  been  defeated  in  all  the  most 
important  matters  ;  the  Whig  party  would  have  been  triumphant, 

AND  IN  A  FAIR  WAY  TO  HOLD  THE    REINS  OF  POWER  FOR  AN  INDEFINITE 

PERIOD.  Sir,  had  that  amendment  succeeded,  I  would  have  prayed 
Heaven  that  the  people  might  have  hissed  the  whole  amended  Consti- 
tution into  oblivion." 

After  these  citations  comment  is  unnecessary.  Where  a 
prisoner  pleads  guilty,  the  case  is  not  put  to  the  jury.  It  may 
be  considered  as  proved,  that,  if  you  will  indulge  me  with  a 
pun  or  two,  the  singularity  of  the  action  of  the  Convention 
upon  plurality,  was  owing  to  the  duality  of  parties  in  the  Co* 
alition.  It  was  a  base,  vulgar  bargain,  for  party  purposes. 
So  of  the  secret  ballot :  so  of  the  poll-tax. 

The  Vicar  of  Bray,  who  changed  his  religion  half  a  dozen 
times  in  the  course  of  his  life,  always  maintained  that  he  was 
a  man  of  principle  ;  and  that  this  principle  was  to  live  and 
die  Vicar  of  Bray.  With  this  interpretation,  the  Convention 
were  eminent  and  conspicuous  for  their  devotion  to  principle. 
More  timid,  less  scrupulous  spirits  sometimes  falter,  or  re- 
trace their  steps.  Compunctious  visitings  intrude  and  arrest 
progress  or  change  direction.  But  not  so  with  that  body. 
They  went  right  on,  neither  pausing  nor  turning  aside,  and 
they  made  a  party  Constitution,  and  not  a  State  Constitu- 
tion. 

Silas  Standfast. 

13* 


138  ELECTION    OF    OFFICKIIS. 


No.   X. 


My  dear  Jotham,  —  In  my  present  letter  I  wish  to  speak 
of  the  changes  made  by  the  Convention  in  the  appointment 
and  the  election  of  certain  officers.  By  the  proposed  Consti- 
tution, the  Secretary,  Treasurer,  Auditor,  and  Attorney-Gen- 
eral are  to  be  chosen  annually  by  the  people,  by  a  majority  of 
votes  ;  and  in  default  of  choice,  then  by  the  General  Court,  by 
concurrent  vote,m  the  same  manner  that  the  Governor  now^  is. 
At  present,  the  Attorney-General  is  nominated  by  the  Gov- 
ernor, and  the  other  three  officers  are  chosen  by  the  General 
Court,  in  joint  ballot. 

By  the  proposed  Constitution,  Judges  of  Probate,  Registers 
of  Probate,  Sheriffs,  Clerks  of  the  Courts,  Commissioners  of 
Insolvency,  and  District  Attorneys  are  to  be  elected  triennially 
by  the  people  of  their  respective  counties  and  districts,  by  a 
plurality  vote.  At  present,  all  Clerks  of  the  Courts  are  nomi- 
nated by  the  Judges  of  the  Supreme  Court.  Trial  Justices, 
newly  created  officers,  are  also  elected  for  three  years. 

As  to  one  or  two  of  these  proposed  changes  I  am  indiffer- 
ent or  doubtful ;  to  the  rest  I  am  entirely  opposed. 

lam  indifferent  as  to  the  Secretary,  Treasurer,  and  Auditor. 
Whether  chosen  by  the  people  or  by  the  Legislature,  the 
result  will  be  probably  much  the  same.  In  either  event,  the 
candidates  will  be  selected  by  the  managers  of  the  respective 
political  parties  into  which  the  State  may  be  divided,  — votes 
will  be  controlled  by  party  ties,  —  the  General  Court  in  the 
one  case,  and  the  people  in  the  other,  being  only  called  upon 
to  confirm  a  caucus  nomination.  I  am  opposed,  more  or  less 
earnestly,  to  the  rest.  Thus  as  to  the  Attorney-General,  Dis- 
trict Attorneys,  Commissioners  of  Insolvency,  and  Registers 
of  Probate,  especially  the  first  three,  no  good  reason  has  been 
given  for  a  change.  The  present  mode  of  appointment  has 
worked  well ;  it  has  secured  to  us  faithful  and  competent 
officers.  I  have  heard  of  no  dissatisfaction,  except  such  as 
was  manufactured  to  order.  And  in  political  matters  I  would 
always  let  well  alone/    I  have  heard  of  an  epitaph  on  a  tomb- 


ATTORNEY-GENERAL. SHERIFFS.  139 

stone,  which  was  in  these  words:  "I  was  well:  I  would  be 
better,  and  I  am  here."  Where  no  inconvenience  is  felt,  — 
where  no  discontent  is  expressed, —  I  would  not  make  a 
change  simply /or  the  sake  of  change. 

The  qualifications  of  an  attorney-general,  a  district  attorney, 
and  a  commissioner  of  insolvency,  are  professional  rather  than 
political.  They  rest  upon  professional  attainments,  which  the 
general  public  can  only  estimate  by  their  results,  and  from  the 
report  of  their  professional  brethren.  The  qualities  which 
enable  men  to  discharge  the  duties  of  these  offices  worthily, 
are  by  no  means  identical  with  such  as  commend  them  to  the 
favor  of  those  who  hold  open  the  door  of  political  advance- 
ment. An  executive  nomination,  subject  to  the  confirmation 
of  the  Council,  —  where  the  responsibility  is  brought  home,  — 
is,  in  my  judgment,  more  likely  to  secure  us  good  public 
servants,  in  these  departments,  than  a  popular  choice.  More- 
over, I  hold  it  to  be  unsafe  to  have  an  attorney-general  de- 
pendent on  the  popular  will  of  a  party,  where  the  party 
may  be  very  desirous  that  some  of  its  members  should  not 
be  prosecuted,  who  ought  to  be ;  nor  should  I  be  willing  to 
have  commissioners  of  insolvency  so  appointed,  where  in- 
solvents are  numerous,  and  could  often  influence  a  county 
election,  for  their  own  purposes. 

There  are  four  sorts  of  officers  left  to  be  considered :  Sher- 
iffs, Judges  of  Probate,  Registers  of  Probate,  and  Clerks  of 
the  Courts. 

The  office  of  sheriff  does  not  require  any  special  training 
for  the  discharge  of  its  functions.  The  popular  will  may 
make  as  good  selections  as  executive  appointment ;  but  the 
danger  is  as  to  the  effect  of  the  proposed  change  upon  the 
officer  himself  afterwards  ;  and  this  danger  is  great.  By  the 
present  Constitution  he  may  be  reappointed :  under  the  new 
one  he  may  be  rechosen.  Plis  being  rechosen  will  depend 
upon  his  favor  with  some  political  party ;  and  that  means 
with  the  leaders  of  that  political  party.  But  the  duties  of  a 
sheriff  should  be  discharged  without  fear  or  favor.  He  is  often 
called  upon  to  do  unpopular  acts ;  and  the  attitude  which  he 
generally  assumes  towards  the  community  is  not  of  a  kind  to 
awaken   agreeable  sensations  in  those  whom   he  approaches. 


140 


SHERIFFS. JUDGES    OF    PROBATE. 


He  will  sometimes  be  called  upon  to  oppose  the  headlong 
current  of  a  mob ;  he  will  sometimes  be  brought  into  official 
collision  with  men  of  great  political  influence.  It  is  highly 
desirable,  therefore,  to  have  a  man  in  this  place  who  will  be 
guided  only  by  a  sense  of  duty,  tempered  by  a  sense  of 
humanity.  But  make  it  his  object  to  become  popular,  espe- 
cially with  politicians,  —  let  him  be  counting  the  chances  of  a 
re-nomination  at  some  political  caucus,  open  or  secret,  —  let 
him  be  anxious  to  gather  in  a  stock  of  personal  good-will, — 
and  you  may  be  sure  that,  in  some  particular  emergency,  in 
some  conflict  of  impulse  and  duty,  he  will  be  found  wanting. 
Remember  that  you  need,  in  a  sherifl",  those  qualities  which 
will  meet  rare,  exceptional,  and  dangerous  cases.  His  com- 
mon and  daily  duties  are  as  plain  as  the  road  to  mill,  and  as 
easy  as  eating  and  drinking.  Anybody  will  serve  a  writ  of 
John  Doe  against  Richard  Roe,  or  arrest  a  pickpocket,  or 
carry  a  burglar  over  to  Charlestown,  or  keep  order  in  a  court- 
house ;  but,  sooner  or  later,  the  test  of  the  man's  honesty, 
firmness,  and  independence  must  be  applied.  The  fountains 
of  popular  madness  are  broken  up,  —  a  mob  is  tearing  down 
a  convent,  or  threatening  to  tar  and  feather  an  Abolitionist,  — 
the  community  is  set  on  fire  by  a  fugitive  slave  case,  and  some 
desperate  fanatics  are  urging  the  sheriff"  to  have  the  fugitive 
taken  by  force  from  the  United  States  Marshal,  —  and  your 
sheriff  should  be  a  man  to  meet  these  emergencies.  Taking 
life  as  it  is,  and  men  as  they  are,  in  what  manner  are  you  most 
likely  to  have  and  to  keep  officers  of  this  high  stamp  ?  Let 
your  own  experience  of  life,  your  own  observation  of  men, 
answer  this  question. 

Then,  as  to  Judges  of  Probate.  The  qualifications  for  this 
office  are  both  professional  and  personal.  The  judge  need  not 
be  a  great  lawyer ;  but  he  should  he  a  good  lawyer,  so  that  his 
decisions  need  not  be  often  appealed  from.  A  man  may  make 
an  excellent  judge  of  probate,  and  not  be  what  is  called  a 
popular  man ;  so  he  may  be  a  very  popular  man,  and  yet  not 
make  the  very  best  judge  of  probate.  By  the  proposed 
change,  we  shall  be  likely  to  have  needy  and  active  politi- 
cians, rather  than  good  lawyers  and  men  of  sound,  safe,  practi- 
cal sense,  —  talkers,  rather  than  wise  men,  —  stump-speakers, 


TENURE    OF    OFFICE. 


141 


rather  than  cautious  and  conscientious  magistrates.  In  view 
of  these  considerations,  —  in  view  of  the  fact,  that  from  first  to 
last,  throughout  the  Commonwealth,  we  have  had  this  office 
filled  by  such  worthy,  faithful,  and  competent  men,  —  I  prefer 
executive  appointment  to  a  popular  choice,  always  at  the 
mercy  of  political  parties. 

But  in  all  judicial  posts,  the  tenure  of  office  is  of  more  im- 
portance than  the  mode  of  appointment ;  that  is,  the  way  that 
you  get  a  man  upon  the  bench  is  not  of  so  much  consequence, 
as  the  influences  which  act  upon  him  when  he  is  seated  there. 
I  will  not  anticipate  here  what  I  propose  to  say  when  I  come 
to  speak  of  the  action  of  the  Convention  in  degrading  the 
tenure  of  our  Judges  to  a  period  of  ten  years,  but  only  urge 
such  considerations  as  seem  exclusively  applicable  to  the  par- 
ticular class  of  magistrates  we  are  now  discussing. 

A  judge  of  probate  stands  in  relations  to  the  community 
which  demand,  above  all  things  else,  honesty,  firmness,  and 
impartiality.  He  must  be  above  suspicion  in  these  respects. 
He  is  constantly  deciding  questions  of  property ;  and  the 
purse-vein  of  our  people  beats  sensitively.  He  has  to  pass 
upon  matters  where  family  feeling  is  involved,  —  to  lay  his 
hand  upon  chords  which  run  back  to  the  core  of  the  heart. 
At  present,  —  holding  his  office  upon  the  tenure  of  good  be- 
havior,—  directly  responsible  only  to  the  Legislature,  who 
may  remove  or  impeach  him,  —  we  can  rely  upon  the  best  ex- 
ercise of  his  best  faculties.  The  judge  of  probate  is  now,  to 
borrow  the  language  of  the  Constitution,  "  as  free,  impartial, 
and  independent,  as  the  lot  of  humanity  will  admit."  But 
elect  him /or  three  years,  make  him  responsible  to  a  politi- 
cal party  and  a  political  press,  and  it  cannot  be  so.  Let  me 
put  a  case.  There  is  an  administration  account  to  be  settled, 
and  on  one  side  there  are  a  poor  widow  and  her  orphan  chil- 
dren, and  on  the  other,  the  administrator,  who  happens  to  be 
a  man  powerful  in  influence  with  the  political  party  upon 
which  the  judge  depends  for  re-nomination  and  re-election. 
Will  this  judge  be  no  respecter  of  persons?  Will  he  look  at 
every  item  in  that  account  with  a  single  and  a  fearless  eye? 
We  read,  that  "a  father  to  the  fatherless,  and  a  judge  of  the 
widows^  is  God  in  his  holy  habitation."     Will  your  triennial 


142  REGISTERS  OF  PROBATE.  —  CLERKS. 

magistrate  be  "a  judge  of  the   widows"  in  the   sense   in 
which  the  Psalmist  uses  the  words? 

As  to  Registers  of  Probate,  why  should  we  make  a  change 
when  we  are  well  off?  We  have  now,  and  always  have  had, 
competent  and  faithful  officers  in  these  places  ;  and  as  I  do 
not  believe  that  we  are  going  to  have  our  kingdom  come  on 
this  earth,  I  am  shy  about  giving  up  any  thing  that  works 
uniformly,  positively  well.  If  you  have  a  razor  that  shaves 
well,  or  a  scythe  that  mows  well,  or  an  axe  that  cuts  well, 
you  would  never  think  of  swapping  it  off  for  a  new  one. 
You  would  not  run  the  risk  of  a  change.  Why  not  apply 
the  same  rule  to  laws  and  institutions  ? 

The  case  of  Clerks  of  the  Courts  is  much  worse.  I  think 
that  the  action  of  the  Convention  on  this  head  is  nothing  less 
than  an  outrage.  I  use  the  word  advisedly.  It  involves  a 
want  of  all  decent  respect  for  the  Judges,  so  unlike  the  usual 
character  of  the  people  of  Massachusetts,  that  nothing  more 
strongly  illustrates  the  partisan  madness  of  the  Convention, 
and  their  want  of  confidence  even  in  the  judges  for  whose 
appointment  by  popular  and  party  votes  they  provide.  Clerks 
are  now  appointed  by  the  Judges,  as  they  manifestly  ought  to 
be.  All  propriety,  all  convenience,  all  decency,  are  in  favor  of 
it.  The  Clerks  are  the  agents  and  ministers  of  the  Judges  ; 
the  relations  between  them  should  rest  upon  personal  con- 
fidence. It  is  their  duty  to  execute,  and  to  execute  instantly, 
the  orders,  decrees,  and  judgments  of  the  courts ;  and  there- 
fore they  ought  to  be  under  their  absolute  and  immediate 
control.  Justice  may  be  stopped  else.  The  people  should  be 
no  more  asked  to  choose  the  Clerks  of  the  Courts,  than  to 
choose  the  clerks  in  the  office  of  the  Secretary  of  State,  or 
the  nurses  in  the  hospital  at  Worcester. 

But  the  places  of  the  Clerks  are  desirable  posts,  because 
they  are  comparatively  lucrative;  and  therefore  they  must  be 
had,  in  order  to  bestow  them  upon  greedy  office-seekers. 
They  must  be  put  into  the  public  crib.  They  must  feed 
the  ravenous  maw  of  a  class  of  men  whom  I  look  upon  as 
among  the  chief  nuisances  of  the  land,  —  the  trading  politi- 
cians,—  who,  leaving  their  lawful  calling,  take  to  peddling 
cheap  politics   about  the  country,  writing  vulgar   squibs  in 


^    TRADING    POLITICIANS.  143 

vulgar  newspapers,  and  making  speeches,  half  venom   and 
half  froth,  like  the  slaver  of  a  mad  dog,  —  men  who  have  no 
knowledge,  no  principle,  no  decency,  no  truth,  —  whose  whole 
stock  in  trade  is  a  brazen   front,  a  loud  voice,  and  an  assort- 
ment of  bad  language.     Would  that  a  strong  wind  from  the 
mountains  might  blow  these  locusts  into  the  sea,  so  that  the 
land  might  have  peace !     There  is  one  consideration  which 
applies  to  all  these  offices  in  which  it  is  proposed  to  substi- 
tute popular  choice  for  executive  appointment.     As  it  now  is, 
we  have  the  responsibility  brovght  home  to  the  Governor  and 
Council,    and  they  are  amenable  [to   public  opinion  if  they 
make  bad  appointments.     But  devolve  the  choice  upon  the 
people,   and  the  responsibility  becomes  so  divided  and  dis- 
tributed, that  it  practically  ceases  to  exist.     The  choice  of  the 
people  in  offices  is  like  a  woman's  choice  of  a  husband  ;  which 
is  a  negative  choice,  and  cannot  go  beyond  the  offer  made. 
So  the  people  must  select  one  of  the  candidates   proposed  to 
them,  while  the  Governor's  range  is  unlimited.     The  contem- 
plated  change   increases  a  power  already  too    great,  —  the 
power  of  caucuses  and  conventions ;  which  really  means  the 
power  of  a  secret,  irresponsible  junto  of  political  wire-pullers. 
A  convention  is  no  more  than  a  decorous  ceremonial,  in  which 
all  has  been  previously  arranged,  cut  and  dried.     The  chair- 
man of  the  committee  who  goes  out  to  nominate  officers  has 
the  list  of  them  in  his  pocket  before  he  starts.     The  President 
whom  that  committee  comes  in  to  nominate,  has  his  speech 
all  written  out  and  committed  to  memory  at  home.     The  chair- 
man of  the  committee  on  resolutions  has  them  ready  pre- 
pared, after  careful  advisement  with  the  political  managers. 
The  candidates  are  settled  beforehand.     All  things  are  con- 
ducted with  a  commendable  command  of  countenance,  which, 
however,  imposes  upon  none  but  the  small  boys  in  the  gallery. 
All  the  work  has  been  done,  before  the  meeting  is  gathered,  by 
a  few  active,  cunning  politicians,  sitting,  with  closed  doors, 
around  a  table,  without  reporters  and  without  responsibility. 

When  this  matter  was  under  discussion  in  the  Convention, 
and  it  seemed  pretty  evident  how  the  vote  would  be,  it  was 
asked  what  would  be  done  in  case  it  became  necessary  to 
remove  one  of  these   officers,  elected  for  three  years.     Sup- 


144  CLUMSY    CONSEQUENCES. 

pose  he  should  become  insane,  or  physically  disabled,  or  be 
guilty  of  gross  misconduct,  how  is  the  public  exigence  to  be 
met?  The  committee  charged  with  the  subject  took  the 
matter  in  hand  afresh,  and  the  Convention,  under  their  guid- 
ance, adopted  a  provision,  which  is  so  remarkable  that  I  quote 
it  entire :  — 

"  The  Governor,  by  and  with  consent  of  the  Council,  may  at  any 
time,  for  incapacity,  misconduct,  ormaleadministration  of  their  offices, 
remove  from  office  Clerks  of  Courts,  Commissioners  of  Insolvency, 
Judges  and  Registers  of  Probate,  District  Attorneys,  Registers  of 
Deeds,  County  Treasurers,  County  Commissioners,  SherifTs,  Trial 
Justices,  and  Justices  and  Clerks  of  Police  Courts  :  provided,  that  the 
cause  of  their  removal  be  entered  upon  the  records  of  the  Council,  and 
a  copy  thereof  be  furnished  to  the  party  to  be  removed,  and  a  reasona- 
ble opportunity  be  given  him  for  defence.  And  the  Governor  may  at 
any  time,  if  the  public  exigency  demand  it,  either  before  or  after  such  en- 
try and  notice,  suspend  any  of  the  said  officers,  and  appoint  substitutes, 
who  shall  hold  office  until  the  final  action  upon  the  question  of  re- 
moval." 

This  arrow,  you  will  notice,  comes  out  of  a  Democratic 
quiver;  but  it  looks  to  me  as  if  despotism  had  sharpened  the 
point.  It  is  true  that  the  Governor  may  now  remove  some 
of  these  officers,  but  it  is  because  he  appoints  them,  and  is 
therefore  responsible  for  them.  But  he  cannot  remove  a  Judge 
of  Probate,  or  a  Justice  of  the  Police  Court,  or  a  Register  of 
Deeds.  His  power  is  enlarged  in  the  direction  in  which  it 
ought  to  be  diminished.  I  need  not  tell  you  how  grossly  the 
authority  here  vested  in  the  Executive  may  be  abused,  in 
times  of  great  party  excitement,  when  the  protection  of  the  Con- 
stitution is  most  needed^  and  how  completely  the  will  of  the 
people,  which  the  authors  of  these  changes  profess  to  hold  so 
sacred,  may  be  trampled  under  foot  and  annulled. 

Just  look  at  the  relations  established  between  the  Judges 
and  Clerks  of  Court  by  these  bungling  and  mischievous  inno- 
vators. The  Judges  must  submit  to  have  their  agents  nom- 
inated by  a  political  cabal,  chosen  by  a  political  party,  and 
removed  by  a  political  Executive !  What  would  you  say,  if 
the  men  that  worked  on  your  farm  were  hired  by  a  town 
meeting,  and  discharged  by  the  chairman  of  the  selectmen  ? 


DEGRADATION    OF    OFFICE.  145 

That  would  not  be  a  bit  more  absurd  or  more  grotesque,  than 
the  way  in  which  the  judges  have  been  dealt  with.  The  lat- 
ter is  as  much  more  outrageous  and  indecent,  as  execution  of 
judicial  precepts  is  more  important  than  the  getting  in  of  hay. 

Again,  the  vagueness  and  indistinctness  of  the  provision 
are  as  conspicuous  as  its  offensiveness.  The  judges  of  pro- 
bate, sheriffs,  &c.  are  to  be  chosen  on  the  Tuesday  next  after 
the  first  Monday  in  November,  for  three  years  next  following 
the  first  Wednesday  in  the  succeeding  January.  Now  sup- 
pose the  Governor  and  Council  remove  one  of  these  officers 
in  March,  how  is  the  office  to  be  filled  in  the  interval  between 
that  time  and  November;  because  the  substitute  can  only 
hold  office  till  the  question  of  removal  is  settled  ?  And  in  case 
of  removal,  shall  the  new  officer  be  chosen  for  an  entire  three 
years,  or  for  the  unexpired  portion  of  the  three  years  of  the 
party  removed  ?  If  you  have  an  opinion  upon  these  points, 
I  will  trouble  you  for  it. 

At  any  rate,  it  is  plain  that,  when  the  Governor  in  March 
has  removed  the  oflScer  and  the  election  is  to  come  on  in  No- 
vember, the  officer  will  spend  the  interval  in  intriguing,  and 
moving  the  passions  of  his  party  against  the  Governor,  so  as 
to  get  re-elected  in  spite  of  him,  and  will  sometimes  succeed, 
—  perhaps  often. 

And  now  I  proceed  to  close  this  long  letter  with  a  single 
suggestion.  The  end  of  all  these  proposed  changes  will  be,  to 
lessen  the  value  of  the  several  offices  which  they  touch.  Take 
from  the  Governor  his  patronage  and  responsibility,  and  he  be- 
comes an  empty  ceremony.  Elect  the  Attorney-General  and 
District  Attorneys  by  a  popular  vote,  and  you  expose  them  to 
all  the  indecencies  and  virulence  of  our  political  press,  —  to 
the  certainty  of  having  their  whole  personal  and  professional 
lives,  and  the  lives  of  their  fathers,  grandfathers,  brothers,  and 
first-cousins,  ransacked,  in  the  hope  of  finding  something  that 
may  be  turned  to  account  in  a  party  contest.  Men  of  high 
professional  standing,  who  alone  ought  to  fill  these  offices, 
will  not  consent  to  be  dragged  through  the  kennels  of  party 
in  this  way,  although  they  might  be  willing  to  have  their 
names  submitted  by  the  Governor  to  the  Council.  Your 
candidates  must  therefore,  if  this  plan  be  adopted,  be  taken 
14 


146  THE    JUDICIARY. 

from  a  lower  range  ;  from  more  obtuse  natures ;  from  spirits 
too  familiar  with  filth  to  fear  its  contact.  Thus,  in  different 
loaps,  the  value  of  all  leading  State  offices  is  impaired.  I 
think  this  very  unwise  and  mischievous.  There  is  always  a 
competition  between  the  general  government  and  the  State 
governments,  for  the  able  men  of  the  country,  in  which  the 
general  government  is  always  bidding  higher  and  higher.  The 
talent  of  the  land  is  more  and  more  tending  to  Washington. 
We  have  recently  seen  two  State  Governors  resigning  their 
places,  to  take  inferior,  but  more  lucrative  offices,  under  the 
general  government.  Still,  there  are  two  States  which  have  en- 
deavored to  counteract  this  tendency,  by  making  State  offices 
valuable  and  important,  and  creating  a  high  tone  of  State 
feeling  and  State  pride.  These  two  are  Massachusetts  and 
South  Carolina.  The  consequence  has  been,  that  the  influ- 
ence of  these  States,  throughout  the  country,  has  been  propor- 
tionately much  greater  than  their  territory  or  population. 
Their  policy  has  been  wise,  honorable,  and  successful.  Shall 
Massachusetts  abandon  it  ?  Do  you  want  to  see  the  cream 
sent  to  Washington,  and  only  the  skim-milk  left  it  home  ? 
This  is  not  an  obvious  consideration,  but  to  me  it  is  a  very 
important  one.     I  pray  you  to  ponder  it. 

Silas  Standfast. 


No.    XI. 

My  dear  Jotham,  —  I  will  now  turn  to  the  action  of  the 
Convention  upon  the  Judiciary.  On  this  subject  we  all  feel 
much.  Respect  for  the  law  is  a  strong,  popular  instinct  in 
Massachusetts, — in  which  you  and  your  neighbors  share; 
and  I  am  sure  that  you  would  never,  knowingly,  give  your 
hand  to  any  change  which  will  weaken  the  administration  of 
the  law. 

Our  Judges,  at  pres«nt,  are  appointed  by  the  Governor,  and 


JUDGES    FOR   TEN    YEARS.  147 

confirmed  by  the  Council,  to  hold  office  during  their  good 
behavior;  but  they  may  be  removed,  summarily,  by  the  Gov- 
ernor and  Council,  on  address  of  the  two  Houses,  without 
assigning  any  reason  therefor;  and  they  are  also  liable  to 
impeachment  and  dismission  for  cause  assigned.  By  the  pro- 
posed Constitution,  they  are  to  be  appointed  for  only  ten 
years;  and  at  the  end  of  that  period  may  be  reappointed. 

This  change  is  simple  and  explicit.  As  you  see,  it  takes 
but  very  few  words  to  tell  it.  It  does  not  look  formidable,  nor 
does  the  thing  strike  the  senses  as  dangerous.  A  plain  man 
goes  into  a  court-house,  and  sees  a  grave,  middle-aged  gentle- 
man, in  a  suit  of  black,  listening  to  the  arguments  of  counsel, 
or  charging  a  jury.  Every  thing  is  conducted  with  decency, 
decorum,  and  propriety;  the  sheriff  maintains  order;  the  law- 
yers say,  "  May  it  please  your  Honor,"  when  they  address  the 
court;  and  it  is  difficult  for  such  a  spectator  to  comprehend 
that  it  is  of  any  great  importance  whether  a  piece  of  parch- 
ment, which  the  judge  has  in  his  desk  at  home,  contains  the 
words  "  during  good  behavior,"  or  "  for  ten  years."  He  may 
feel  that  so  respectable  and  dignified  a  gentleman  will  behave 
very  well  in  either  event.  He  may  say  that  he  cannot  under- 
stand why  people  should  get  into  such  a  worry  about  what 
they  call  the  judicial  tenure.     I  will  tell  you. 

Every  man  that  has  reflection  enough  to  get  in  his  firewood 
for  winter,  will  admit  that  it  is  desirable  to  have  the  very  best 
judges  that  we  can  possibly  g-et,  for  the  safety  of  our  persons 
and  character  and  property  is  intrusted  to  their  learning,  wis- 
dom, and  uprightness.  In  what  way,  then,  are  we  to  secure 
this  advantage  ?  In  the  first  place,  we  must  create  and  main- 
tain a  tone  of  public  sentiment  w^hich  will  cause  the  office 
and  the  person  of  a  judge  to  be  respected.  In  the  next  place, 
we  must  give  the  judges  honorable  salaries,  so  that  fit  men 
may  not  feel  they  should  be  guilty  of  injustice  to  their  fami- 
lies by  taking  a  seat  upon  the  bench.  In  the  third  place,  we 
must  give  them  a  sense  of  security,  so  that  their  minds  may 
not  be  troubled  by  any  uneasy  apprehension  for  the  future 
which  we  can  remove.  The  moment  a  man  begins  to  worry 
about  to-morrow,  his  value  for  to-day  begins  to  be  impaired. 

Now,  the  first  and  immediate  effect  of  this  proposed  change 


148 


JUDGES    FOR    TEN    YEARS. 


will  be  to  make  a  seat  upon  the  bench  less  desirable  than  it 
is  at  present;  and,  consequently,  you  will  be  obliged  to  go 
lower  down  on  the  list  of  the  bar  before  you  come  to  a  man 
who  will  be  willing  to  take  it.  Let  me  illustrate  this.  In 
general,  the  best  age  to  be  elevated  to  the  bench  is  from  forty 
to  forty-five ;  a  period  when  a  man's  place  at  the  bar  has  be- 
come fixed,  and  he  has  as  much  business  as  he  ever  has. 
Suppose  that  a  lawyer  of  this  age,  with  a  large  and  lucrative 
practice,  and  a  young  family  growing  up  around  him,  is  given 
to  understand  that  a  seat  upon  the  bench  may  be  tendered  to 
him.  As  things  now  stand,  he  will  reason  with  himself  after 
this  fashion:  —  "It  is  true  that,  by  going  upon  the  bench,  I 
give  up  at  least  one  half  of  my  income,  but  then  I  assume  a 
post  of  great  usefulness  and  respectability,  and  though  I  may 
have  to  work  nearly  as  many  hours  as  I  do  now,  yet  my  work 
will  not  be  so  wearing,  exhausting,  and  exciting,  and  I  shall 
escape  much  of  this  haunting  and  sleep-murdering  sense  of 
responsibility.  My  health  will  undoubtedly  improve.  Per- 
haps I  cannot  hope  to  keep  all  the  business  I  now  have,  if  I 
continue  at  the  bar,  against  the  competition  of  the  able  young 
men  who  are  treading  upon  my  heels;  but  a  seat  upon  the 
bench  is  a  possession  which  I  can  hold  so  long  as  my  faculties 
are  spared  to  me."  The  end  of  this  self-communion  is,  that, 
with  a  little  persuasion,  a  flattering  interview  or  two  with  the 
Governor,  a  favoring  intimation  from  the  Chief  Justice, — 
perhaps  a  little  influence  from  one  who  loves  her  husband  well 
enough  to  make  sacrifices  for  his  health  and  happiness,  —  he 
accepts  the  proffered  post. 

Suppose,  however,  that  the  new  Constitution  should  be 
adopted,  and  that  a  lawyer  of  the  same  age  and  similar  posi- 
tion has  the  same  offer  made  to  him.  He  will  say  at  once, 
"  I  cannot  think  of  taking  this  place.  I  am  now  maintaining 
my  family,  educating  my  children,  and,  at  the  same  time,  put- 
ting something  by  for  a  rainy  day.  I  go  upon  the  bench,  and 
at  the  end  of  ten  years,  when  my  clients  will  have  forgotten 
me,  — when  the  discharge  of  judicial  duties  will  have  unfitted 
me  for  resuming  practice, —  I  may  be  turned  adrift  upon  the 
world,  and  with  very  little  in  my  pockets  for  ballast.  I  cannot 
take  one  step  towards  the  bench.     I  feel  the  hands  of  my 


INFERIORITY    OP    SUCH    JUDGES.  149 

children  pulling  me  back  by  my  coat-tails." .  Thus  he  would 
surely  reason ;  and  he  would  reason  rightly.  It  is  of  no  use 
to  urge  that  he  might,  and  probably  would,  be  reappointed  at 
the  end  of  ten  years.  He  also  mig'ht  not ;  and  a  prudent  man 
will  not  take  the  risk. 

I  have,  as  you  well  know,  a  very  high  respect  for  the  judi- 
cial office.  I  think  one  such  judge  as  Judge  Story  was,  and 
Chief  Justice  Shaw  is,  is  worth  as  many  brawling  politicians 

like ,  (on  the  whole,  I  will  not  fill  up  the  blank,)  as 

could  stand  between  here  and  Connecticut  River.  The  func- 
tion of  a  judge  is  much  higher  than  that  of  a  lawyer.  In  the 
practice  of  the  law  there  are  moral  and  intellectual  dangers, 
which  it  requires  constant  self-vigilance  to  guard  against.  But 
there  is  nothing  in  the  duties  of  a  judge  which  does  not  con- 
tribute to  the  best  growth  of  the  mind  and  character.  But  the 
office  of  a  judge  is  not  in  all  respects  desirable,  even  to  those 
who  have  the  requisite  learning  and  ability;  for  the  vigorous 
health  and  even  temperament,  without  which  no  judge  can 
do  his  work  with  comfort  to  himself  or  anybody  else,  are  not 
given  to  all  able  and  good  lawyers.  His  duties  are  severe  and 
monotonous,  —  a  hard  and  steady  pull,  — ever  the  same.  He 
has  to  work  from  the  first  day  of  January  to  the  last  day  of 
December,  and  yet  not  always  get  his  work  done.  He  must 
give  all  his  faculties  this  week  to  learn  the  details  of  a  case, 
which  next  week  he  had  better  forget.  His  mind  is  always 
taking  in  and  discharging  cargo.  And  then  the  bad  air  he 
has  to  breathe,  and  the  interminable  long  speeches  he  has  to 
hear  from  empty  and  resonant  bladders  of  the  law,  who,  on  a 
question  of  a  rain-water  spout,  begin  with  the  deluge  !  It  is, 
after  all,  not  a  very  tempting  place ;  not  so  tempting  as  I  wish 
it  were. 

Nay  more,  a  seat  upon  the  bench  — which  it  is  of  such  vast 
importance  to  have  worthily  filled  —  is  already  growing  less 
and  less  desirable.  Old  men  will  tell  you,  that  the  pers(^i  and 
office  of  a  judge  are  not  so  much  respected  as  when  they  were 
young.  Old  lawyers  will  tell  you,  that  a  seat  upon  the  bench 
is  not  the  object  of  jjrofessional  ambition  that  it  once  was. 
The  dreams  which  play  around  the  pillows  of  our  ambitious 
young  lawyers  are  of  political,  not  of  judicial  advancement. 
14* 


150 


HIGH    DUTIES    OF    A   JUDGE. 


Their  air-castles  are  all  built  at  Washing-Ion.  To  be  represent- 
atives, senators,  foreign  ministers, — these  are  the  rainbows 
painted  on  the  clouds  of  their  future. 

The  effect  of  such  a  change  as  the  new  Constitution  pro- 
poses will  be,  to  make  the  judges  on  the  bench  inferior  to  the 
leading  lawyers  at  the  bar ;  and  that  would  be  a  thing  not  only 
lamentable  to  contemplate,  but  most  unfavorable  to  the  wel- 
fare of  the  community,  and  the  great  ends  of  justice.  At 
present,  when  a  client  comes  into  my  office,  to  consult  me 
about  his  case,  I  feel  assured  that  he  will  have  a  fair  trial, 
whoever  may  be  opposed  to  me  ;  and  that  whatever  I  may 
have  to  say  will  receive  a  candid  and  unbiased  hearing,  and 
get  all  the  weight  it  is  entitled  to.  But  suppose  another 
state  of  things,  —  such  as  surely  will  come,  should  this  change 
go  into  effect, —  and  I  might  be  constrained  to  say  to  my  cli- 
ent, "You  have  got  a  good  case;  the  law  and  facts  are  on 
your  side  ;  but  then  it  will  have  to  be  tried  before  Judge  Slow- 
coach, and  Mr.  Vivid,  the  great  man  of  our  bar,  is  opposed  to 
you  ;  and  he  owns  that  judge, —  he  has  got  as  good  as  a  bill 
of  sale  of  him  in  his  pocket ;  and  when  he  is  in  court,  the 
judge  does  not  dare  to  say  his  soul  is  his  own.  I  therefore 
cannot  give  you  any  assurance  that  you  will  have  a  fair  trial." 
Is  this  a  comfortable  thing  for  a  lawyer  to  say,  or  for  a  client 
to  hear  ? 

No  man  who  wishes  well  to  his  country  will  ever  do  any  thing 
to  weaken  the  Judiciary  ;  for  the  Judiciary,  do  what  we  will, 
is  the  weakest  of  all  the  departments  of  government.  It  is 
weaker  than  the  Executive, —  it  is  far  weaker  than  the  Legis- 
lative. Its  natural  support  is  in  the  reason  and  judgment  and 
conscience  of  the  community ;  but  our  passions  array  them- 
selves on  the  side  of  the  Legislature.  A  conflict  between  the 
two  is  no  impossible  event ;  and,  in  case  of  such  a  conflict, 
how,  according  to  their  sympathies  and  affinities,  would  men 
be  foynd  ranging  themselves  ?  Around  the  Judiciary  would 
gather  the  old,  the  grave,  and  the  cautious,  —  the  sickly  con- 
servatives that  ought  never  to  have  been  born,  —  the  old  fogies, 
that  ought  to  be  ashamed  of  themselves  for  being  alive  ;  they 
would  stand  around  the  bench,  with  their  spectacles,  their 
crutches,  and   their  walking-sticks.     And  on  the  other   side 


JTTDICIAL    INDEPENDENCE.  151 

would  be  mustered  the  hosts  of  "  Young  America,"  led  on  by 
the  Wilsons,  the  Butlers,  and  the  Burlingaraes,  all  full  of 
youth,  and  passion,  and  strength  ;  and,  in  the  shock  of  the  en- 
counter, what  would  become  of  the  Judiciary  and  itsfriends? 

"  Ask  of  the  tree  which  the  lightning  has  shattered. 
Ask  of  the  leaves  which  the  storm-wind  has  scattered." 

Therefore,  to  lower  the  Judiciary  —  to  make  it  weaker  and  less 
honored  —  is  as  superfluous  as  to  increase  the  patronage  of 
the  President  of  the  United  States,  or  add  to  the  length  of  a 
New  England  winter. 

As  I  said  in  a  previous  letter,  I  think  that  the  tenure  by  which 
a  judge  holds  his  office  is  of  more  importance  than  the  mode  of 
his  appointment.  In  my  judgment,  an  executive  appointment, 
during  good  behavior,  is  the  very  best  way  to  get  a  good  judge, 
and  especially  the  very  best  way  to  keep  him  good ;  but,  as  at 
present  advised,  I  would  prefer  to  have  these  magistrates  chosen 
by  the  Legislature,  or  the  people,  during  good  behavior^  rather 
than  appointed  by  the  Governor  for  a  term  of  years  ;  because 
then  I  should  feel  that,  after  they  had  begun  to  act  in  that  ca- 
pacity^ there  would  be  no  influences  upon  them  which  would 
impair  their  value  as  judges. 

Let  me  quote  to  you  here,  as  a  sort  of  introduction  to  what 
I  am  going  to  say,  a  sentence  or  two  from  our  Bill  of  Rights, 
a  part  of  which  I  have  cited  before :  — 

"  It  is  the  right  of  every  citizen  to  be  tried  by  judges  as  free,  im- 
partial, and  independent  as  the  lot  of  humanity  will  admit.  It  is, 
therefore,  not  only  the  best  policy,  but /or  the  security  of  the  rights  of 
the  people,  and  of  every  citizen,  that  the  Judges  of  the  Supreme  Court 
should  hold  their  offices  so  long  as  they  behave  themselves  well  ;  and 
that  they  should  have  honorable  salaries,  ascertained  and  established 
by  standing  laws." 

These  are  simple,  noble,  comprehensive  words.  Nothing 
can  be  taken  from  them  ;  nothing  can  be  added  to  them.  You 
will  note  the  connection  which  the  Constitution  recognizes 
between  the  independence  of  the  judges  and  "  the  security  of 
the  rights  of  the  people,  and  of  every  citizen.^^  Here  is  the  rub ; 
the  thing  is  touched  with  a  needle's  point.  You  will  observe, 
too,  that  the  Constitution  starts  with  an  admission  of  human 


152  JUDICIAL    INDEPENDENCE. 

infirmity  in  judges,  and  then  proceeds  to  guard  the  people,  as 
far  as  possible,  against  that  infirmity.  The  Constitution  is 
right  in  both.  The  fact  is  true  ;  the  precaution  is  wise.  The 
judge  is,  first,  a  man;  second,  a  lawyer;  and,  third,  a  judge. 
The  framers  of  our  admirable  Constitution  proposed  to  them- 
selves two  objects  in  regard  to  the  Judiciary :  first,  to  get  the 
best  possible  judges ;  and,  second,  to  secure  afterwards  the 
best  exercise  of  their  best  judicial  faculties.  The  proposed 
change  will  do  neither.  It  will  give  us  judges  inferior  to  those 
we  have  always  had,  and  will  expose  them  to  dangerous  influ- 
ences and  temptations  heretofore  unknown  in  Massachusetts. 
What  is  the  first  great  quality  in  a  judge  ?  Beyond  all 
question,  independence.  He  may  be  learned,  wise,  and  con- 
scientious; but  if  he  be  not  independent,  if  he  have  not  the 
courage  which  rests  upon  independence,  there  is  not  the  least 
security  that  his  good  qualities  will  move  in  the  right  direction. 
This  is  the  guardian  virtue,  which  stands  at  the  gate  and 
keeps  watch  over  the  rest  Now,  let  the  judge  know  and  feel 
that  the  Governor,  at  the  end  of  ten  years,  may  or  may  not 
reappoint  him  ;  suppose  him  also  to  be  a  man  of  little  prop- 
erty, and  dependent  for  the  just  support  of  his  family  upon  his 
income,  —  do  you  imagine  that  he  will  be  perfectly  indepen- 
dent, that  no  shadow  of  apprehension,  no  touch  of  favor,  will 
ever  pass  over  his  mind  ?  On  this  point,  I  am  well  aware 
that  Democratic  orators  and  politicians,  taking  counsel,  doubt- 
less, of  their  ow^n  pure  instincts  and  pure  associations,  are  apt 
to  soar  to  heights  of  transcendental  disinterestedness  and  mag- 
nanimity, quite  out  of  my  sight;  but  then  I  remember  that  on 
the  secret  ballot  their  speech  is  all  the  other  way ;  for  then  the 
voters  of  Massachusetts  become  very  frail  and  dependent,  and 
must  be  protected  against  the  influence  of  their  moneyed  em- 
ployers. Judges  are  cut  out  of  the  same  cloth  as  other  men, 
and  I  know  enough  of  human  nature  to  know  that  all  men 
should  pray  fervently  to  be  delivered  from  temptation.  If  you 
will  insure  me  angels  on  the  bench,  with  wings  folded  up  under 
their  coats,  I  may  cease  to  oppose  the  new  Constitution  on 
this  ground;  but  you  cannot  get  angels  to  serve  you  in  this 
capacity;  and,  under  the  proposed  change,  you  will  not  get  a 
class  of  men  for  judges  that  will  come  very  near  to  angels. 


JUDICIAL    INDEPENDENCE. 


153 


It  is  a  stern  fact,  from  which  there  is  no  escaping,  that  he  who 
controls  a  man's  bread  exerts,  sensibly  or  insensibly.,  more  or  less 
control  over  his  thoughts  and  his  will.  I  do  not  mean  to  say, 
that,  come  what  will,  we  shall  have  base,  venal,  and  corrupt 
judges  in  Massachusetts,  or  that  their  sycophancy  and  subser- 
viency will  be  palpable,  glaring,  monstrous  ;  but  I  do  say,  that 
the  lofty  and  eminent  excellence  which  we  have  had  in  that 
department  will  no  longer  be  there ;  and  that  we  must  here- 
after be  content  to  associate  with  our  ideas  of  a  judge,  a  less 
conspicuous  merit,  and  a  less  distinguished  ability,  than  we 
now  rest  upon  for  the  protection  of  our  persons,  our  property, 
and  our  characters,  —  in  short,  all  that  is  worth  protecting  or 
living  for. 

As  a  man  thinketh  in  his  heart,  says  the  wise  man,  so  is 
he.  This  saying,  applicable  in  so  many  ways,  applies  also 
to  the  case  of  judges.  At  present,  no  man,  however  dissatis- 
fied he  may  be  with  the  decisions  of  the  court,  can  say,  or 
have  reason  to  think,  that  the  judges  have  been  moved  by 
any  thing  but  their  convictions  ;  but  let  them  be  in  a  position 
to  give  color  to  the  charge  of  being  actuated  by  foreign  influ- 
ences, and  especially  political  biases,  and  discontent  will  be 
sure  to  vent  itself  in  that  way.  You  know  how  many  of  the 
cases  that  come  be'fore  our  courts  have  more  or  less  of  a  po- 
litical aspect,  especially  constitutional  cases,  and  you  also 
know  that  many  lawyers  are  vehement  politicians ;  but  per- 
haps you  do  not  know  what  I  can  tell  you,  that  there  are 
some  lawyers  who  cannot  conceive  it  to  be  consistent  with 
the  scheme  of  Divine  Providence  in  the  government  of  this 
world,  that  they  should  ever  be  mistaken.  Therefore,  when 
the  court  decides  against  them,  they  feel  as  if  chaos  were 
come  again,  —  that  suns  will  cease  to  rise,  and  stars  refuse  to 
shine.  Now  would  you  like  to  see  such  a  state  of  things  in 
Massachusetts,  as  that  a  lawyer-politician  might  ventilate  his 
wrath,  after  an  adverse  decision,  in  words  like  these,  muttered 
in  the  bar,  but  not  inaudible  :  "  You  think  it  a  fine  thing  to 
sit  up  there  on  the  bench  and  make  law  to  suit  your  own  pol- 
itics; but  your  course  will  soon  be  run.  Your  ten  years  will 
be  out  next  year,  and  we  will  pitch  you  overboard  with  as 
little  ceremony  as  you  pitch  overboard  a  law  that  does  not 


154  MASSACHUSETTS    JURISPRUDENCE. 

suit  you,  and  put  a  man  in  your  place  who  will  have  some 
sympathy  with  the  people,  and  respect  their  wishes  a  little 
more  than  such  an  old  fogie  as  you." 

In  England,  the  judges  are  independent  of  the  crown  ; 
formerly  they  were  not.  The  change  was  considered,  and 
justly  so,  as  a  great  triumph  of  constitutional  liberty.  In  the 
course  of  the  debates  in  the  Convention,  a  speaker  of  the 
Coalition  party  remarked,  that  it  was  right  that  the  Judiciary 
should  be  independent  of  the  crown  in  England,  so  that  it 
might  stand  between  the  government  and  the  people ;  but 
that  here  the  people  are  the  sovereign,  and  we  do  not  want 
any  thing  to  come  between  them  and  the  government.  There 
is  great  confusion  of  ideas  in  this  statement,  although  it  is 
constantly  advanced  against  an  independent  Judiciary.  It  is 
not  true,  that  in  England  the  Judiciary  stands  between  the 
government  and  the  people  ;  it  stands  between  the  government 
and  the  individual.  And  just  so  here,  the  Judiciary  stands 
between  the  government  and  the  individual^  and  it  ought  to 
stand  there  ;  but  then  the  government  here  is  the  people ;  and 
we  want  a  Judiciary  strong  enough  to  protect  the  individual 
against  the  people^  in  case  the  people  should  be  wrong.  We 
want  a  judge  who  w^ill  not  fear  a  political  party  or  a  political 
press.  We  insist  that  every  criminal,  however  odious  his 
crime  may  have  been,  should  have  a  fair  and  dispassionate 
trial.  We  claim  and  need  a  Judiciary  strong  enough  to  pro- 
tect a  trembling  culprit  against  popular  violence  and  political 
persecution.  We  insist,  when  the  constitutionality  of  a  law 
is  before  the  court,  that  no  judge  should  feel  that  his  chance 
of  reappointment  may  be  affected  by  his  decision.  We  claim 
to  have  political  offenders  tried  as  impartially,  —  with  as  much 
freedom  from  executive  influence,  —  as  John  Marshall  tried 
Aaron  Burr.  Does  any  man  say  that  John  Marshall  would 
have  tried  Aaron  Burr  in  the  same  way,  had  the  tenure  of  the 
judges  of  the  Supreme  Court  been  for  ten  years?  I  reply, 
that,  with  such  a  provision  in  the  Constitution  of  the  United 
States,  you  would  never  have  had  John  Marshall,  or  any  man 
like  him,  on  the  bench. 

The  Judiciary  of  Massachusetts  is  one  of  the  brightest  jew- 
els in  her  honored  crown ;  we  do  not  perceive  all  its  lustre, 


JURIES  JUDGES  OF  THE  LAW.  155 

because  it  is  worn  upon  our  own  brow.  But  go  to  Arkansas, 
to  Wisconsin,  to  Georgia,  and  ask  there  what  is  the  authority 
of  the  Massachusetts  Reports,  and  you  would  be  enlightened 
on  this  subject.  Your  heart  would  swell  with  honorable 
pride  at  the  respect  paid,  in  those  distant  States,  to  the  decis- 
ions of  our  Judges,  whom  the  new  Constitution  insults  by 
virtually  pronouncing  them  unfit  to  appoint  their  own  clerks! 
Such  influence  as  we  exert,  through  our  courts,  is  one  of  the 
purest  and  highest  that  man  can  have  over  man.  It  has  no 
alloy,  of  passion  or  prejudice ;  it  is  the  calm  supremacy  of 
truth,  reason,  and  conscience.  Are  we  to  renounce  this  ? 
Are  we  to  throw  it  away  in  pure  wantonness  ?  I  trow  not. 
The  people  have  been  taken  by  surprise  upon  this  question  of 
the  Judiciary.     They  will  give  their  answer  at  the  polls. 

Silas  Standfast. 


No.  XII. 

My  dear  Jotham,  —  We  have  now  done  with  that  por- 
tentous omnibus,  the  First  Proposition,  —  an  omnibus  so  huge, 
that  a  passenger  at  one  end  cannot  see  a  passenger  at  the 
other,  — and  therefore  I  can  call  your  attention  to  the  Third 
Proposition,  touching  the  right  of  juries  in  criminal  cases, 
which  is  as  follows  :  — 

"  In  all  trials  for  criminal  offences,  the  jury,  after  having  received 
the  instruction  of  the  court,  shall  have  the  right,  in  their  verdict  of 
guilty  or  not  guilty,  to  determine  the  law  and  the  facts  of  the  case  ; 
but  it  shall  be  the  duty  of  the  court  to  superintend  the  course  of  the 
trials,  to  decide  upon  the  admission  and  rejection  of  evidence,  and 
upon  all  questions  of  law  raised  during  the  trials,  and  upon  all  collateral 
and  incidental  proceedings  ;  and  also  to  allow  bills  of  exceptions.  And 
the  court  may  grant  a  new  trial  in  case  of  conviction." 

In  order  to  apprehend  the  full  force  and  effect  of  this  pro- 
posed change,  we  must  first  ascertain  what  is  the  law,  as  it  now 


156  JURIES    JUDGES    OF    THE    LAW. 

stands.  And  on  this  point,  it  is  fair  to  state  that  there  is 
some  ditference  of,  opinion  among  lawyers  and  judges.  This 
arises  partly  from  the  imperfection  of  language,  and  partly  from 
the  fact,  that  in  general  a  man's  convictions  and  opinions  fol- 
low in  the  lead  of  his  sympathies,  passions,  and  prejudices. 
We  believe  what  we  wish  to  believe;  truth  is  what  a  man 
trowelh.  Under  our  system  of  law,  the  rights  and  powers  of 
the  jury  in  criminal  cases  are  expressed  in  a  well-known  legal 
proposition,  that  the  jury  are  judges  of  the  law  as  well  as  the 
facts.  But  from  these  words  one  man  will  extract  one  mean- 
ing, and  another  another.  A  man  who  thinks  that  there  is 
danger  from  the  encroachments  of  the  Judiciary,  will  put  one 
interpretation  upon  them;  while  another,  more  apprehensive 
of  popular  passion,  embodied  in  the  jury-box,  will  put  an- 
other, and  both  will  be  justified  to  their  own  consciences.  I 
will  explain  these  words  to  you,  as  I  understand  them ;  and 
as  they  have  been  recently  expounded  by  the  Supreme  Court 
of  our  State. 

Every  criminal  issue  involves  questions  of  law  as  well  as 
questions  of  fact.  For  instance,  an  act  of  homicide  is  com- 
mitted, that  is,  one  man  kills  another.  This  may  be  murder, 
or  it  may  be  manslaughter,  or  it  may  be  justifiable  or  excusa- 
ble homicide.  In  the  first  case,  the  punishment  is  death  ;  in 
the  second,  it  is  imprisonment;  in  the  third,  the  person  is 
acquitted.  When  a  man  is  on  trial  for  murder,  and  the  de- 
fence is  that  the  act  was  no  more  than  manslaughter,  —  and 
when  the  evidence  has  all  been  put  in,  —  the  judge,  in  his 
charge  to  the  jury,  does  not  say  to  them,  in  so  many  words, 
that  the  prisoner  is  guilty  of  murder  or  manslaughter,  because 
that  would  be  an  interference  with  their  peculiar  and  exclusive 
province;  but  he  explains  to  them  the  legal  principles" by 
which  murder  is  distinguished  from  manslaughter,  tells  them 
that  such  and  such  palliating  circumstances  discriminate  the 
one  offence  from  the  other,  and,  at  the  close,  says  to  them, 
that  they  must  apply  these  rules  of  law  to  the  facts  in  the 
case,  as  they  have  heard  them  from  the  witnesses  on  the 
stand,  and  find  their  verdict  accordingly. 

Thus,  there  are  two  elements  put  into  the  case  :  first,  the 
facts  as  proved    by  the  witnesses ;    second,  the  law  as  laid 


JURIES  JUDGES  OF  THE  LAW,  157 

down  by  the  court.  With  the  former,  the  court  have  nothing 
to  do,  they  have  no  right  to  tell  the  jury  that  they  must  be- 
lieve this  witness  and  not  that  one,  —  that  this  statement  is 
true  and  that  is  not  true,  —  because  this  would  be  an  intrusion 
upon  the  proper  and  exclusive  province  of  the  jury.  But  as 
the  jury,  and  the  jury  alone,  are  to  weigh  the  facts,  so  the 
court,  and  the  court  alone,  are  to  expound  the  law.  This  is 
their  function  and  their  duty. 

But  by  the  proposed  change  the  jury  are  to  have  entire  con- 
trol over  both  the  law  and  the  facts.  They  have  the  right  to 
"determine  the  law,"  —  that  is,  to  fix  or  settle  the  law.  They 
are  to  take  the  judge's  charge,  not  as  an  authoritative  exposition 
of  the  law,  but  as  a  piece  of  evidence  respecting-  the  law,  which 
they  may  believe  or  not,  just  as  they  choose.  He  is  no  longer 
to  instruct  the  jury,  but  to  advise  them  ;  he  is  not  so  much  a 
judge  as  a  presiding  officer,  —  a  moderator  of  a  judicial  town- 
meeting. 

We  judge  of  a  tree  by  its  fruits.  What  sort  of  fruits  will 
this  tree  bear  ?  The  instant  and  obvious  effect  of  the  pro- 
posed change  will  be,  to  destroy  the  certainty  of  the  criminal 
law.  This  law  will  be  just  what  the  twelve  judges,  sitting  in 
the  jury-box,  may  determine  it  to  be  in  each  particular  case. 
There  will  be  one  law  in  Boston,  and  another  in  Worcester, 
and  another  in  Springfield ;  one  to-day,  another  to-morrow, 
and  another  next  week.  The  government  will  be  a  govern- 
ment of  men,  not  of  laws.  At  present,  a  client  comes  into 
my  office  and  tells  me  that  he  has  been  knocked  down,  or 
that  somebody  has  called  him  a  thief,  and  he  wants  my  advice 
as  to  whether  he  shall  resort  to  a  civil  action,  or  a  criminal 
prosecution,  for  redress.  I  can  now  advise  him,  with  some 
reasonable  confidence,  as  to  his  rights  in  either  event ;  but  let 
this  proposition  be  adopted,  and  I  must  say  to  him,  "  If  you 
bring  a  civil  action,  the  result  will  be  so  and  so ;  but  if  you 
have  recourse  to  a  criminal  prosecution,  I  can  give  you  no 
opinion,  but  only  a  surmise  or  a  guess.  If  the  foreman  of  the 
jury  which  tries  the  indictment  should  chance  to  be  a  political 
or  personal  enemy  of  yours,  they  may  bring  in  a  verdict  of 
'  Served  you  right,'  or  '  Good  enough  for  you.'  You  are  a 
Whig.     That  bench  may  be  of  opinion  that  there  is  no  law 

15  \ 


158  JURIES    JUDGES    OF    THE    LAW. 

in  Massachusetts   against   a  Democrat's   knocking  down    a 
Whig." 

Let  rae  go  a  little  further,  and  imagine  this  professional 
dialogue  continued  a  few  steps.  Suppose  my  client  to  be  a 
man  of  a  large  spirit,  inclosed  in  a  small  body,  and  say  to 
me,  "  Well,  Squire,  the  next  time  a  great  strapping  fellow, 
that  has  not  got  a  cent  in  the  world,  knocks  me  down,  what 
will  be  the  consequence  if  I  stick  a  bowie-knife  into  him,  as  I 
mean  to  do  ?"  Now,  to  use  a  homely  expression,  the  boot  is 
on  the  other  leg,  and  I  can  say  to  my  little  game-cock  of  a 
client,  that  perhaps  the  twelve  judges  who  try  that  case  may 
be  of  the  opinion  that  there  is  no  law  in  Massachusetts  against 
sticking  a  bowie-knife  into  a  man  who  has  knocked  another 
down. 

It  is  no  sufficient  reply  to  these  considerations  to  say,  that 
practically  such  results  are  not  likely  to  happen.  It  is  always 
right  to  argue  against  any  law  or  rule  from  its  possible  conse- 
quences. I  do  not  want  a  fair-weather  and  smooth-water 
law;  but  one  that  will  hold  when  the  wind  is  blowing  great 
guns,  and  the  waves  beating  on  the  ship  like  so  many  trip- 
hammers. 

Upon  what  are  called  the  rights  of  juries,  there  is  a  great 
deal  of  declamatory  nonsense  put  forth,  founded  upon  analo- 
gies so  false  and  apprehensions  so  grotesque,  that  they  can 
only  be  explained  by  a  want  of  common  sense  or  common 
honesty.  In  England,  two  hundred  years  ago,  the  bench  was 
disgraced  by  a  set  of  judicial  bloodhounds,  who  hunted  the 
martyrs  of  liberty  to  death,  with  as  little  regard  to  law  as  to 
humanity,  and  a  jury  was  merely  an  instrument  to  execute 
the  will  of  a  cruel  and  wicked  tyrant ;  therefore^  the  rights  of 
the  juries  here,  in  America,  in  the  nineteenth  century,  are 
likely  to  be  trampled  under  foot  in  the  same  way,  and  must 
be  protected  against  similar  encroachment!  Why,  in  Eng- 
land even,  such  scenes  will  no  more  happen  again,  than  will 
Queen  Victoria  drive  down  to  the  Parliament  House  in  her 
state  coach,  and  demand  the  bodies  of  Cobden  and  Bright  to 
be  given  up  to  her,  for  making  radical  speeches.  And  in  our 
country  such  things  will  occur,  —  such  apprehensions  will  be- 
come real,  —  when  ice  fails  in  Labrador,  or  talking  in  Con- 


ENGLAND  AND  AMERICA.  159 

gress, —  when  Everett  grows  prosy,  and  schoolboys  protest 
against  holidays,  —  when  Irving's  "Sketch  Book"  is  not 
read,  and  the  Debates  of  the  Convention  are, — when  the 
name  of  Washington  ceases  to  be  reverenced,  and  that  of 
Benedict  Arnold  begins  to  be, —  but  not  till  then. 

Again,  these  trials  in  England  were  state  prosecutions,  in 
which  the  prisoner  was  charged  with  attempting  to  overthrow 
the  government.  Would  it  not  be  a  good  joke  to  see  a  man 
trying  to  overthrow  the  government  here,  which  would  be  like 
trying  to  turn  over  the  great  pyramid  of  Egypt,  and  set  it  up 
on  the  apex  ?  Would  it  not  be  curious  to  see  where  or  how 
he  would  begin  ?  Our  government  is  like  a  rocking  stone, — 
one  man  can  shake  it,  but  a  hundred  thousand  cannot  over- 
turn it.  When  was  our  last  state  prosecution  in  Massachu- 
setts ?  Who  was  ever  hung  for  treason  here  ?  Even  old 
Shays  was  allowed  to  die  in  his  bed,  and  Dorr,  in  a  neighbor- 
ing State,  aspired  in  vain  to  the  palms  of  martyrdom.  And 
yet  we  hear  small  lawyers  and  small  politicians  constantly 
drawing  analogies  between  a  criminal  prosecution  here,  in 
which  society  is  protecting  itself  against  attack,  and  a  state 
prosecution  in  England,  in  the  days  of  the  Stuarts,  when  the 
government  first  condemned  and  then  tried.  A  wretch  breaks 
into  a  lonely  farmhouse  at  night,  and  cuts  the  throats  of  a 
poor  couple  whom  he  finds  asleep  in  their  bed,  and  Windy 
Gas,  Esq.,  who  defends  him,  talks  about  Sidney  and  Russell, 
and  addresses,  on  behalf  of  his  odious  and  cowardly  client,  the 
sacred  sympathies  which  embalm  those  illustrious  names. 

When  anybody  talks  to  you,  my  dear  Jotham,  about  the 
danger  of  the  judges  encroaching  upon  the  rights  of  the 
juries,  do  you  set  him  down  for  either  a  fool  or  a  knave ; 
probably  the  latter.  There  is  about  as  much  danger  of  it,  as 
there  is  of  your  house  being  burned,  and  your  children  scalped, 
by  the  Indians.  Our  perils  do  not  lie  in  that  path.  We  do 
not  need  to  strengthen  the  jury  or  to  weaken  the  bench. 
Within  our  time,  an  Abolitionist  has  been  shot  in  Ohio,  and 
a  sheriff  murdered  in  cold  blood  by  Anti-renters  in  New  York ; 
and  who  has  been  punished  for  it?  In  our  own  State,  a  con- 
vent, occupied  by  defenceless  women  and  children,  has  been 
burned  down  by  a  mob,  and  who  was  punished  for  that  ?  one 


160  CONSTITUTIONAL    QUESTIONS. 

youth,  by  a  short  imprisonment.  To  widen  the  domain  of 
popular  passion,  to  increase  the  impunity  of  popular  violence, 
is  to  fan  a  prairie-fire,  and  swell  the  freshets  of  spring.  And 
yet  the  course  of  democracy  has  ever  been  to  give  force  to 
the  element  of  popular  passion,  embodied  in  the  jury,  and  to 
weaken  the  element  of  reason  and  justice,  represented  by  the 
bench.  A  radical  politician  hates  a  judge  as  instinctively  as 
a  crow  hates  a  gun.  A  radical  heaven  is  a  place  where  every 
man  does  what  he  pleases,  and  there  is  a  general  division  of 
property  every  Saturday  night.  Courts  and  judges  interfere 
with  this  desired  consummation,  and  therefore  radicals  feel 
towards  them  much  as  wolves  do  towards  shepherds'  dogs. 

The  rights  and  duties  of  the  jury,  with  us,  are  affected  by 
the  peculiar  relations  between  the  Constitution  and  the  laws 
made  under  it.  In  all  popular  governments,  where  the  major- 
ity rule,  a  written  constitution  becomes  necessary ;  because, 
otherwise,  there  would  be  no  protection  for  the  minority. 
Thus  arises  an  important  —  the  most  important  —  branch  of 
law,  —  constitutional  law.  Lawyers  are  constantly  raising, 
judges  are  constantly  deciding,  the  question  whether  a  cer- 
tain statute  is  or  is  not  repugnant  to  some  clause  in  the  Con- 
stitution, the  paramount,  organic  law.  In  England,  they 
know  nothing  of  this  class  of  questions.  Parliament  there  is 
supreme,  and,  as  is  pointedly  and  popularly  said,  can  do  any 
thing  except  change  a  man  into  a  woman.  In  regard  to  these 
constitutional  questions,  so  close  is  the  connection  between 
the  will  and  the  mind,  that,  where  there  is  any  room  for  doubt, 
ninety-nine  men  out  of  a  hundred  really  and  conscientiously 
will  believe  a  law  to  be  unconstitutional  which  they  dislike ; 
and  the  reverse.  You  remember  the  Charles  River  Bridge 
case,  many  years  ago  ;  and  the  constitutional  questions  that 
grew  out  of  it.  Do  you  suppose  there  was  a  man  in  Charles- 
town,  whose  real  estate  was  benefited  by  the  new  bridge, 
who  believed  that  the  act  creating  it  was  unconstitutional  ?  I 
have  heard  of  moral  idiots  ;  such  a  man  would  be  a  moral 
genius  of  the  highest  order.  I  have  read  of  a  Pope  who  tried 
himself  for  heresy,  and,  at  the  end  of  the  hearing,  adjudged 
himself  to  be  burned  ;  but  if  there  ever  was  such  a  man,  the 
breed  has  long  been  extinct.     It  is  the  same  thing  at  this 


LOSS    OF    SECURITY.  161 

moment  with  the  Maine  Liquor  Law,  so  called ;  all  who  dis- 
like the  law  really  believe  it  to  be  unconstitutional. 

Now,  under  the  proposed  amendment,  the  jury  have  the 
right  to  acquit  any  one  who  may  be  tried  under  a  law  which 
they  may  deem  unconstitutional.  What  will  be  the  practical 
effect  of  this?  A  law  is  passed  by  a  large  majority;  it  is 
sustained  by  public  sentiment;  the  court  charges  that  it  is 
constitutional ;  and  yet,  if  one  juryman  think  otherwise,  no 
conviction  can  ever  be  had  under  it.  Is  not  this  an  anti- 
democratic principle  ?  Does  it  not  give  to  one  man  in  twelve, 
or  one  twelfth  of  the  community,  the  power  of  nullifying  the 
decision  of  the  majority,  lawfully  expressed  ? 

In  the  discussions  upon  this  subject,  it  seems  to  be  assumed 
that  the  court  will  always,  and  as  a  matter  of  course,  be 
more  inclined  to  convict  than  the  jury.  But  this  is  by  no 
means  the  case.  It  often  has  happened,  —  it  often  will  hap- 
pen,—  that  a  prisoner  at  the  bar  has  been  tried  and  con- 
demned by  public  sentiment  before  the  indictment  has  been 
read  to  the  jury.  In  such  cases  it  is  the  duty  of  the  court  to 
protect  him  against  a  headlong  popular  prejudice  and  to  say 
to  the  jury,  in  words  of  authority,  that,  whatever  your  pas- 
sions or  feelings  may  say,  the  law  says  so  and  so ;  and  by  the 
law  alone  this  man  must  stand  or  fall.  Is  it  not  a  noble  thing 
to  see  a  judge  thus  instructing  a  jury  ?  Is  it  not  a  noble 
thing  to  see  a  jury  obeying  such  instructions?  There  is  not 
a  prouder  day  in  the  whole  life  of  Boston,  than  that  on  which 
a  jury  of  her  citizens  acquitted  the  soldiers  who  had  fired 
upon  the  people,  on  the  seventh  of  March,  1770.  John 
Adams,  in  closing  that  case  for  the  prisoners,  said  to  the  jury : 
"  To  your  candor  and  justice  I  submit  the  prisoners  and  their 
cause.  The  law,  in  all  vicissitudes  of  government,  fluctua- 
tions of  the  passions,  or  flights  of  enthusiasm,  will  preserve 
a  steady,  undeviating  course  ;  it  will  not  bend  to  the  uncer- 
tain wishes,  imaginations,  and  wanton  tempers  of  men." 

This  appeal  was  heeded.  The  jury  took  counsel  of  their 
"candor"  and  "justice,"  and  not  of  their  passions.  Would 
they  have  done  so,  if  they  had  had  the  right  to  "determine"  the 
law  ?  I  am  aware  that  the  judge  may  grant  a  new  trial  in 
case  of  conviction.  But  will  your  decennial  judge  have  the 
15* 


162  HOUSE    OF    REPRESENTATIVES. 

courage  to  brave  public  opinion,  and  save  a  man  whom  the 
people  have  determined  to  slay  ? 

It  may  be  said,  that  the  proposed  change  will  have  no  great 
practical  effect,  because  now  the  jury  may  return  a  general 
verdict,  and  cannot  be  interrogated  as  to  the  grounds  of  their 
determination ;  and  thus  they  have  now  the  power  of  disre- 
garding the  instructions  of  the  court,  and  of  determining  the 
law  for  themselves.  To  this  I  reply,  that  the  change  converts 
a  usurped  power  into  a  lawful  rights  and  we  thus  lose  the 
security  which  we  now  have  in  the  conscience  of  the  jury. 
There  are  some  men  yet  left  in  the  world,  who  are  afraid  to 
do  wrong.  Give  them  the  right  to  determine  the  law,  and 
the  last  barrier  between  popular  madness  and  an  innocent 
man's  blood  will  be  broken  down. 

Silas  Standfast. 


No.  XIII. 


My  dear  Jotham,  —  I  now  come  to  speak  of  the  system 
of  representation  in  the  popular  branch  of  the  General  Court, 
which  the  Convention  have  offered  to  the  voters  of  Massachu- 
setts ;  a  subject  which  I  must  discuss  in  a  single  letter,  though 
all  the  injustice  and  absurdity  of  the  proposed  scheme  could 
not  be  exposed,  or  held  up  to  shame,  as  it  ought  to  be,  in  less 
than  a  dozen.  I  shall  therefore  not  go  into  any  elaborate 
statistical  details,  or  make  any  minute  comparisons  between 
one  part  of  the  State  and  another.  There  is,  in  fact,  no  longer 
any  need  of  this.  The  broad  and  palpable  enormities  of  the 
system  are  enough  for  my  purpose,  and  are  widely  enough 
known.  They  are  as  easily  seen  as  a  church  by  day-light. 
When  we  hear  that  a  noble-hearted  friend  of  liberty  is  lan- 
guishing in  prison,  our  indignation  and  sympathy  do  not  wait 
to  learn  the  precise  weight  of  his  chains  or  the  number  of 
their  links.  The  simple  fact  is  enough.  It  is  not  the  exact 
degree  of  injustice  and  oppression  that  stirs  the  blood ;  we 


HOUSE    OF    REPRESENTATIVES.  163 

feel  before  we  calculate ;  —  the  sense  of  wrong  is  roused  be- 
fore the  sum  total  of  the  wrong  is  known. 

A  great  deal  of  ink  and  breath  has  been  expended,  during 
the  last  three  or  four  years,  to  convince  the  people  of  Massa- 
chusetts that  they  had  a  Constitution  so  sadly  out  of  repair, 
that  nothing  short  of  a  Convention  was  able  to  mend  it.  If 
the  quacks  of  Democracy  are  to  be  believed,  we  have  been 
languishing  under  such  a  complication  of  disorders,  that  noth- 
ing but  an  extraordinary  degree  of  native  vigor  has  kept  us 
alive.  And  what  was  our  most  alarming  disease  ?  What 
was  it  that  required  the  speediest  and  sharpest  remedy? 
Why,  the  representative  system,  beyond  all  question,  doubt,  or 
controversy.  And  what  were  the  most  marked  symptoms  of 
this  state  of  desperate  sickness  ?  First,  that  the  House  of 
Representatives  was  far  too  large  for  the  convenient  despatch 
of  business ;  second,  that  the  representation  of  the  people 
therein  was  not  founded  upon  the  true  democratic  principle 
of  equality. 

Upon  both  of  these  points,  as  they  declared,  there  was  a 
general  consent  among  judicious  and  unprejudiced  minds. 
The  House  of  Representatives,  as  at  present  constituted,  is 
too  large  a  body  for  the  convenient  despatch  of  business.  A 
traveller  in  Russia,  observing  the  universal  use  of  the  hatchet 
among  the  peasantry,  remarked  that,  if  they  were  taught  to 
write,  they  would  mend  their  pens  with  it.  To  summon  a  Leg- 
islature of  from  three  hundred  and  fifty  to  four  hundred,  to  make 
laws  for  less  than  a  million,  seems  to  me  like  using  a  hatchet 
to  mend  a  pen.  Business  drags  its  slow  length  along,  like  a 
wounded  boa-constrictor;  it  moves  to  the  tune  of  the  Dead 
March  in  Saul.  The  sessions  are  protracted  to  an  absurd 
length  ;  and  a  double  expense  is  thus  incurred,  both  from  the 
number  of  legislators  to  be  paid,  and  from  the  length  of  time 
they  are  about  their  work. 

The  House  of  Representatives,  at  present,  is  not  founded 
upon  that  principle  of  equality  which  we  all  recognize  as  the 
basis  of  democratic  institutions.  The  small  towns  have 
more  than  their  fair  share  of  representation ;  the  cities  and 
large  towns  have  less.  Political  power  is  not  distributed  ac- 
cording to  population,  and  a  voter's  weight  and  influence  in 
the  State  depend  upon  the  accident  of  his  locality. 


164  INEQUALITY. 

Well,  the  Convention  was  called,  more  for  the  sake  of  rem- 
edying this  double  evil  than  for  all  other  reasons  put  together; 
at  any  rate,  such  was  the  pretext.  It  was  on  this  ground, 
mainly,  that  the  question  was  presented  to  the  people.  No 
politician  could  have  had  the  face  to  talk  about  a  Constitu- 
tional Convention,  if  the  system  of  representation  had  been 
unobjectionable.  The  people  would  have  laughed  him  to 
scorn,  as  one  who  wanted  to  help  the  Dutch  take  Holland. 
That  was  a  grievance.  It  was  a  drum  that  they  could  beat; 
and  they  did  beat  it  to  some  purpose.  By  it  and  through  it 
they  got  their  Convention.  And  then  what  did  they  do  ? 
Why,  they  laid  their  heads  together,  and  talked,  and  ciphered, 
and  made  tables,  and  at  the  end  of  three  months  came  out 
with  a  scheme  vastly  worse  than  the  present  system  in  all  re- 
spects ;  a  scheme  which  gives  us  a  larger  House,  and  makes 
the  inequality  of  representation  more  glaring.  The  average 
number  of  the  House,  as  at  present  constituted,  is  three  hun- 
dred and  seventy-two  ;  under  the  proposed  change,  it  will  be 
four  hundred  and  five.  And  as  to  inequality,  there  is  one  de- 
cisive fact ;  and  that  is,  that^  in  a  House  of  four  hundred  and 
five,  a  number  of  voters  less  than  one  third  by  fifteen  hundred, 
will  and  must  elect  two  hundred  and  eight  members,  or  over  one 
half  the  House  !  The  present  system  is  sufficiently  unequal, 
but  clearly  not  so  bad  as  that. 

This  is  certainly  a  notable  result.  Here  were  a  body  of  men 
called  together  to  take  off  a  burden,  and  they  lay  on  a  heavier 
one.  A  convocation  of  doctors  is  summoned  to  cure  a  patient 
of  a  slight  touch  of  the  rheumatism,  and  they  leave  him  roar- 
ing with  the  gout.  The  cool  assurance  of  the  Coalition  poli- 
ticians, in  claiming  merit  at  the  hands  of  the  people  for  lashing 
them  -with  scorpions,  when  before  they  were,  at  worst,  gently 
beaten  with  birch  rods,  is  only  to  be  paralleled  in  that  cele- 
brated scene  in  Swift's  "  Tale  of  a  Tub,"  where  Lord  Peter 
bullies  his  brothers  Martin  and  Jack  into  believing,  or  into 
saying  that  they  believe,  that  a  brown  loaf  is  a  shoulder  of 
mutton. 

And  on  what  grounds,  by  what  arguments,  is  so  unjust,  so 
anti-democratic,  so  shameful  a  system  of  representation  de- 
fended ?     Mainly  on  the  ground  of  prescription.     Massachu- 


ARGUMENT  FROM  PRESCRIPTION.  165 

setts  has  had  from  the  beginning  a  representation  of  corpora- 
tions ;  her  towns,  as  such,  have  been  entitled  to  choose  repre- 
sentatives, and  therefore  a  plan  which  has  come  down  to  us 
from  our  fathers,  and  is  hallowed  by  the  associations  and  tra- 
ditions of  two  hundred  years,  should  not  be  abandoned,  even 
to  take  up  a  system  which  we  might  prefer  if  we  were  going 
to  begin  anew. 

Considerations  of  this  kind,  urged  by  Democratic  politi- 
cians, have  to  me  a  savor  of  suspicion.  The  voice  is  the 
voice  of  Jacob,  but  the  hands  are  the  hands  of  Esau.  I  spy 
the  "  pig  peard  "  of  radicalism  under  this  conservative  muffler. 
I  remember  that  these  men,  who  trot  out  "the  wisdom-of-our- 
ancestors"  argument  in  defence  of  a  system  which  time  has 
made  unequal,  unjust,  and  mischievous,  change  their  hand 
when  the  same  defence  is  invoked  for  a  sacred  and  time-hon- 
ored principle,  such  as  the  independency  of  the  Judiciary. 
Then,  we  hear  of  "  obsolete  abuses,"  of  "  retrospective  preju- 
dice," of  "  dark  ages  "  and  "feudal  oppressions,"  of  "  Old  Hun- 
kers," "  Old  Fogies,"  and  "  the  fossil  remains  of  an  antedilu- 
vian age  of  politics."  Then,  Massachusetts  is  a  hopeless  lag- 
gard in  the  race  of  improvement,  and  insists  upon  riding 
through  the  world  with  her  head  turned  towards  the  horse's 
tail.  Then  we  are  asked  when  we  last  left  our  cards  at 
the  door  of  the  Ark,  and  how  the  country  looks  around  Mt. 
Ararat. 

Now,  few  men  feel  more  strongly  than  I  do  the  argument 
from  prescription.  But  the  constitution  of  a  House  of  Rep- 
resentatives is  just  one  of  those  things  we  are  bound  to  learn 
from  experience,  and  to  make  changes  in  order  to  meet  the 
changes  and  requisitions  made  by  time  itself.  This  whole 
battle  was  fought  in  England  twenty  years  ago,  in  the  debates 
on  the  Reform  Bill.  There  and  then  this  argument  was 
pressed  in  favor  of  the  old  rotten  borovg-hs,  that  had  ceased  to 
have  voters,  and  manufactured  nothing  but  members  of  Par- 
liament. On  the  other  hand,  the  liberal  statesmen  con- 
tended, that  the  population  had  changed  its  localities,  under 
the  demands  of  commerce  and  manufactures,  —  that  populous 
places  had  become  solitudes,  and  solitudes  populous  places, 
—  and  that  the  House  of  Commons  must  be  modified  accord- 


166  CITIES    AND    TOWNS. 

ingly,  —  in  short,  that  representatives  must  be  taken  from  the 
past  and  given  to  the  present.  These  considerations  pre- 
vailed, and  the  House  of  Commons  was  reformed  ;  and  it 
was  a  wise  and  salutary  reform,  carried  against  the  Tories, 
who  made  use  of  precisely  the  same  arguments  that  Bout- 
well  and  Hallett  are  now  addressing,  not  to  the  sense,  but  to 
the  nonsense,  of  the  people  of  Massachusetts.  And  shall  we 
be  less  wise,  less  progressive,  than  England  ?  Shall  we  flaunt 
in  her  cast-off  rags  ? 

Again,  it  is  said  that  the  towns  and  rural  districts  must  be 
protected  against  the  cities.  This  argument  would  be  merely 
foolish,  but  that  it  happens  also  to  be  wicked.  I  use  the  word 
advisedly.  I  call  that  man  wicked  who  sows  the  seeds  of 
strife  between  one  part  of  a  community  and  another.  If 
you  caught  a  man  in  your  house  setting  your  children  at  va- 
riance with  each  other,  or  poisoning  their  minds  with  distrust 
of  their  parents,  you  would  kick  him  out  of  the  back  door, 
and  put  on  your  thickest  pair  of  cow-hide  boots  in  order  to 
perform  the  ceremony  effectually;  and  you  would  serve  him 
right.  In  like  manner  my  wrath  is  stirred  when  I  see  a  shal- 
low and  unprincipled  demagogue  blowing,  with  venal  and 
impure  breath,  the  coals  of  strife  between  city  and  country, 
and  hardening  the  hearts  of  brethren  against  each  other. 
And  the  notion  on  which  this  argument  rests  is  as  false  as 
the  motives  which  prompt  it  are  base.  It  is  slandering  the 
title  to  an  estate,  in  order  to  buy  it  at  less  than  its  value. 
There  is  no  difference  in  interests,  there  is  no  alienation  of 
feeling,  between  the  city  and  the  country.  We  are  all  in  the 
same  boat,  and  not  a  very  large  boat  either.  This  calumny 
was  never  heard  of  till  within  the  last  few  years.  It  was 
made  to  order.  That  viper  has  crawled  out  of  the  Coalition 
heart,  and  the  people  of  Massachusetts  will  crush  the  reptile's 
head  with  their  heel ! 

But  wht/  are  the  "  rural  districts  "  to  be  protected  against 
the  cities,  and  what  is  there  in  the  latter  which  makes  them 
so  dangerous  ?  Sometimes  we  are  told  that  it  is  the  great 
wealth  of  the  cities  that  makes  them  formidable,  and  some- 
times, their  great  poverty.  Sometimes  it  is  said  that  talent 
of  ail  kinds  is  drawn  to  the  cities,  and  that  this  is  a  formid- 


CLAIMS    OF   JUSTICE.  167 

able  element ;  and,  again,  that  huge  masses  of  ignorance  are 
aggregated  in  cities,  and  that  peril  resides  in  them.  Thus, 
whether  a  man  be  rich  or  poor,  wise  or  foolish,  so  long-  as  he 
lives  in  a  city,  he  is  dangerous,  and  must  therefore  be  disfran- 
chised. To  state  these  arguments  is  to  refute  them  ;  they 
contradict  and  neutralize  each  other.  Certainly,  within  the 
last  twenty  years,  especially  since  the  application  of  steam  to 
locomotion,  the  cities  and  large  towns  have  increased  more, 
in  proportion,  than  the  "  rural  districts  " ;  but  what  then  ? 
Nobody  is  compelled  to  leave  the  village  and  come  to  the  city. 
And  why  is  it  that  so  many  persons  thus  change  their  place 
of  residence?  Because  they  think  that  they  can  get  a  living 
more  easily  in  the  cities  and  large  towns  than  in  the  villages, 
and  the  necessity  of  getting  a  living  is  the  controlling  motive 
in  the  lives  of  nine  men  out  of  ten.  And,  as  a  general  rule, 
the  reason  why  more  men  can  get  a  living  in  one  place  than 
another,  is  from  some  superior  natural  advantages  which  that 
place  enjoys.  And  shall  a  place  be  made,  through  the  laws  of 
man,  to  suffer  for  benefits  conferred  upon  it  by  the  laws  of  God  ? 
But  I  will  not  pursue  this  subject,  though  I  have  hardly 
crossed  its  threshold.  The  true  rule  in  regard  to  the  repre- 
sentative system,- in  a  growing  and  progressive  community 
like  ours,  is  that  laid  down  by  Governor  Boutwell,  in  a  speech 
in  the  Convention,  "  the  application  of  the  results  of  experi- 
ence to  the  existing  institutions  of  the  country " ;  respect 
being  had  to  the  traditionary  feelings  and  transmitted  instincts 
of  the  people,  so  far  as  is  consistent  with  the  claims  of  jus- 
tice and  the  inevitable  changes  of  time.  I  am  well  aware  of 
the  clause  in  the  proposed  Constitution,  by  which  the  Legis- 
lature of  1856  is  required  to  district  the  State  for  the  choice 
of  representatives.  But,  though  the  Constitution  uses  the 
emphatic  word  "  shall,"  I  do  not  know  why  the  Legislature 
may  not  use  the  equally  emphatic  word  ^^  wont,"  and  then 
what  are  we  going  to  do  about  it  ?  Besides,  a  Senate  and  a 
House  of  Representatives,  chosen  as  those  bodies  must  be  in 
that  year,  if  this  party  Constitution  prevails,  will  never  agree 
upon  the  details  of  a  district,  and  thus  the  plan  will  fall 
through,  as  it  is  intended  by  the  wire-pullers  behind  the  scenes 
that  it  should. 

Silas  Standfast. 


168  WHAT    CHANGES    ARE    WANTED. 


No.  XIV. 


My  dear  Jotham, —  Many  of  the  "thrilling,"  "impas- 
sioned," and  "  electrifying  "  speakers,  whose  names  bestar  the 
columns  of  the  "  Commonwealth,"  like  so  many  fire-flies  on  a 
June  night,  would  fain  persuade  the  people  that  the  Whigs, 
after  all,  are  in  favor  of  most  of  the  changes  proposed  by  the 
Coalitionists  in  their  party  Constitution.  But  this  is  not  so  ; 
and  they  either  know  it  already,  or  they  must  soon  find  it  out. 
Irish  echoes  are  said  to  anticipate  the  sound  ;  Coalition  knowl- 
edge often  anticipates  the  fact.  The  "  Commonwealth"  knew 
that  Dr.  Palfrey  did  not  write  his  own  pamphlet,  and  that  Mr. 
Charles  Francis  Adams  was  not  opposed  to  the  Constitution. 
As  there  is  a  knowledge  that  is  power,  so  there  is  an  igno- 
rance that  is  bliss. 

We  should  all  be  glad  to  have  the  Constitution  amended 
where  it  needs  it.  We  should  be  glad,  for  instance,  to  have 
the  House  of  Representatives  so  diminished  in  number  as  to 
make  it  an  effective  working  body  in  these  postdiluvian  pe- 
riods, when  the  years  of  man  are  only  threescore  and  ten. 
We  should  be  glad  to  have  the  plurality  system  applied  to  the 
election  of  Governor  and  other  State  officers,  so  that  we  may 
choose  men  to  govern  us  without  having  them  corrupted  and 
the  State  dishonored  by  base  barters  for  pffice.  And  we  should 
be  glad  to  have  other  salutary  changes  adopted,  now,  or  as 
time  and  circumstances  may  develop  the  need  of  them.  But 
the  proposed  Constitution  has  done  none  of  these.  As  Gov- 
ernor Morton  says,  in  his  recent  speech  at  Taunton,  it  has 
done  what  it  ought  not  to  have  done,  and  has  left  undone 
what  it  ought  to  have  done.  Its  omissions  and  commissions 
are  alike  glaring.  This  Constitution,  with  its  clumsy  blun- 
ders, its  shameful  injustice,  its  low,  dishonest,  partisan  charac- 
ter, we  reject  and  disavow,  as  an  unworthy  thing,  —  disgraceful 
to  those  who  conspired  together  to  make  it,  mischievous  to  the 
great  interests  of  the  State,  and  tending  to  break  down  moral 
principle  and  social  order  among  us. 

The  proof  of  all  this,  my  dear  Jotham,  I  have  already  given 


WHAT    CHANGES    ARE    BAD.  169 

you,  —  sometimes  in  detail  and  sometimes  not,  —  but  always, 
I  think,  plainly  enough.  I  have  shown  you,  for  instance,  that 
the  shabby  attempt  to  shorten  the  sessions  of  the  Legislature 
by  an  unstatesmanlike'  provision,  that  has  been  already  tram- 
pled upon  in  New  York,  will  only  end,  if  adopted,  in  making 
two  sessions  for  one,  multiplying  long  speeches,  and  putting 
more  money  into  the  pockets  of  the  representatives,  just  as  it 
has  in  that  State.  I  have  shown  you  that  it  is  not  decent  or 
honest  to  lump  nine  tenths  of  the  Constitution  into  one  mass, 
and  endeavor  to  corner  ns  vp,  and  drive  us  to  take  a  great  deal 
that  we  condemn,  in  order  to  get  a  little  that  we  like,  and  so 
help  the  Coalition  to  carry  out  the  unprincipled  bargains  they 
made  in  the  Convention  by  their  wholesale  log-rolling.  I  have 
shown  you  how  mean  it  is  to  demand  a  poll-tax  and  open 
voting  in  town  affairs,  in  order  that  the  dollars  of  the  farmers 
may  not  be  touched  by  any  hands  they  do  not  see  and  know 
all  about;  while  every  thing  relating  to  National  and  State 
affairs  is  given  up  to  the  secret  ballots  of  those  who  bear  no 
penny  of  the  public  burdens.  I  have  shown  you,  that,  in  the 
hurry  and  eagerness  of  the  Coalition  to  carry  their  party  meas- 
ures, ihey  forgot  to  order  any  authentic  or  legal  record  made  of 
the  very  Constitution  they  ask  you  to  accept,  so  that  you  can- 
not now  verify  what  it  contains,  in  the  only  way  it  is  permitted 
to  verify  the  commonest  judgment  of  a  court  of  justice,  or  the 
most  unimportant  resolve  of  the  Legislature. 

Some  things  I  have  not  touched  upon,  for  want  of  time.  I 
have  not  exposed  all  the  clumsy  blunders  of  the  proposed 
Constitution,  which  gives,  for  instance,  in  one  article,  power 
to  the  Governor  and  Council  to  determine  who  are  elected, 
and  who  "  shall  be  "  Senators,  while,  in  another,  it  reserves  the 
same  power  to  the  Senate  itself;  and,  when  it  comes  to  Har- 
vard College,  restores  the  obsolete,  rejected,  sectarian  Board  of 
Overseers,  which  would  thus  be  made  to  consist  mainly  of 
sixty  or  seventy  Congregational  ministers  in  Boston  and  the 
five  neighboring  towns, —  all  just  because  the  Convention  did 
not  know  any  better  how  to  do  its  work. 

But  a  truce  to  these  details,  —  though  they  should  all  be  noted 
and  considered  by  the  people,  —  and  let  me  say  a  word  about 
two  or  three  of  its  preponderating  provisions,  which  you  will 
16 


170  WHAT    CHANGES    ARE    BAD. 

talk  over  with  your  neighbors  when  you  come  to  make  np 
your  decision  on  the  whole  subject  set  before  you  by  the  Con- 
vention, —  a  decision,  which,  in  its  results  and  consequences, 
will  affect  the  welfare  of  your  children  and  your  children's 
children,  long  after  you  and  I  are  in  our  graves. 

And,  First,  —  The  "  Proposed  Constitution  "  should  be  re- 
jected, because  it  would  give  up  the  great  principle  that  we 
fought  for  in  the  Revolution,  that  taxation  and  representation 
should  go  together  ;  and  because,  for  the  purposes  of  the  party 
coalition,  and  for  no  other  purposes,  it  would  put  the  power 
of  the  government  permanently  into  the  hands  of  a  minorily 
consisting  of  less  than  one  third  of  the  people,  who  would  not 
only  be  enabled  to  choose  more  than  half  the  representatives 
every  year,  but  who  vmst  do  it,  —  an  outrage  on  every  idea 
connected  with  the  republican  doctrine,  that  the  will  of  the 
majority  shall  govern  the  minority. 

Second,  —  The  proposed  Constitution  should  be  rejected, 
because  it  would  impair  or  destroy  the  independence  of  the 
Judiciary,  and  degrade  an  authority,  indispensable  to  the  wel- 
fare of  the  community,  by  putting  on  the  bench  inferior  men, 
in  place  of  the  high  and  faithful  judges  who  have  so  long  ad- 
ministered justice  to  us  and  to  our  fathers,  with  wisdom, 
integrity,  and  mercy,  and  who  have  given  the  jurisprudence  of 
Massachusetts  a  name  for  learning  and  uprightness  in  every 
State  in  the  Union. 

Third,  —  The  proposed  Constitution  should  be  rejected, 
because  it  would  not  only  treat  the  justices  of  the  Supreme 
Court  with  an  indignity  as  unworthy  of  us  as  of  them,  in  tak- 
ing from  them  all  control  over  their  own  clerks,  but  also 
break  down  the  independence  and  efficiency  of  the  executive 
power,  by  making  the  clerks  of  the  courts  and  the  sheriffs  so 
dependent  on  a  political  party  for  their  places,  that  the  ques- 
tion whether  a  popular  leader  shall  be  punished  for  a  crime  of 
which  he  has  been  convicted,  will  depend  upon  the  question, 
whether  the  clerk  and  sheriff  will  give  effect  to  the  judgment 
of  the  court,  when,  on  the  one  hand,  both  clerk  and  sheriff  are 
sure  that  they  shall,  at  the  very  next  election,  be  dismissed 
from  office  if  they  do  it;  while,  on  the  other  hand, — even  in 
case  the  Governor  should  dare  to  turn  them  out  for  their  re- 


THE    WHOLE    TO    BE    REJECTED.  171 

fusal,  —  they  can  trust  to  their  party  to  reinstate  them  by  a 
popular  vote,  in  contempt  of  the  Governor  and  his  authority. 

And,  Fourth,  and  last,  —  We  should  reject  the  proposed  Con- 
stitution, because,  hy  a  cunning  and  corrupt  parly  arrangement^ 
—  made  to  secure  a  Coalition  supremacy  in  the  Commonwealth, 
and  for  nothing  else, —  a  fair  majority  of  the  people  can  never 
hereafter  get  rid  of  any  of  its  unjust  and  mischievous  pro- 
visions, since  it  declares  that  less  than  one  third  of  the  voters 
shall,  in  all  future  time,  have  control  of  the  other  two  thirds, 
in  the  choice  of  members  for  any  convention  that  may  be  held 
to  amend  the  Constitution  ;  an  insult  to  justice  and  honesty, 
which,  if  it  should  be  engrafted  into  our  Supreme  Law  by  the 
jugglings  of  party  leaders,  will  lay  the  foundation  of  a  series 
of  feuds,  quarrels,  and  agitations,  which  will  never  permit  the 
people  of  this  Commonwealth  to  have  an  interval  of  peace, 
until,  in  some  way  or  other,  the  disfranchised  and  outraged 
majority  are  restored  to  the  rights,  on  which  their  welfare,  and 
that  of  their  children,  depends. 

Now,  then,  my  dear  Jotham,  since,  as  I  have  shown  you, 
the  great  Representative  power  of  the  government  is,  by  this 
proposed  party  Constitution,  given,  in  the  most  unjust  and 
unjustifiable  manner,  to  a  small  minority  of  the  people ;  since 
the  Judiciary,  the  bulwark  of  our  personal  rights  and  personal 
safety,  is  broken  through  by  it ;  since  the  Executive,  to  which 
we  look  for  immediate  protection  against  violence  and  wrong, 
is  weakened  and  overawed  by  it ;  and  since  no  remedy  is  left 
by  it,  in  the  hands  of  a  majority  even  of  two  thirds  of  the  voters 
of  the  Commonwealth,  for  all  or  any  of  these  monstrous  evils, 
and  for  this  overthrow  of  principle  and  law  ;  —  since,  I  say,  I 
have  shown  you  all  these,  you  know  the  reasons  why  we  go 

AGAINST     THIS     PROPOSED     PARTISAN     CONSTITUTION  ;     and     my 

word  for  it,  my  dear  Jotham,  you  and  the  two  thirds  of  the 
people  whom  it  seeks  to  defraud  of  their  rights,  will,  when  the 
question  is  put  to  them,  be  of  the  same  mind. 

Indeed,  the  very  leaders  of  the  Coalition,  and  of  the  two 
parties  that  have  formed  it,  already  desert  the  obnoxious  and 
shameful  cause,  and  come  over  to  us.  Marcus  Morton,  once 
a  Democratic  Governor  of  Massachusetts ;  John  G.  Palfrey, 
lately  the  Free  Soil  candidate  for  the  same  office  ;  the  venera- 


172  THE    WHOLE    TO    BE    REJECTED. 

ble  Samuel  Hoar,  always  superior  to  the  love  of  place ; 
Charles  F.  Adams,  more  faithful  to  the  honored  name  he  bears 
than  to  his  recent  political  associations,  and  others  of  mark 
among  them,  are  already  on  the  outer  walls  of  the  old  Con- 
stitution, beckoning  the  people  to  the  defence  of  their  rights. 
All  honor  to  them  for  it !  And  all  honor  they  will  have,  when 
the  14th  of  November  is  come  and  gone.  For  this  is  not  a 
party  question  ;  and  party  passions  —  however  they  may  be 
stirred  up  by  reckless  partisan  leaders  and  venal  stump  speak- 
ers —  will  not  decide  it.  It  will  be  decided  by  a  careful  and 
conscientious  exercise  of  that  sound  sense  which,  in  the  mass 
of  the  people  of  Massachusetts,  cannot  be  long  hoodwinked, 
and  which  has  never  yet  been  cornered,  or  outwilted,  or  driven, 
as  it  is  now  attempted  to  corner,  and  outwit,  and  drive  it, 
by  what  Mr.  Palfrey  well  calls  "  a  stupendous  piece  of  log- 
rolling." Mark  my  words,  Jotham,  the  fate  of  this  "  ring- 
straked  and  speckled "  Constitution,  the  product  of  fraud, 
trick,  and  party  corruption,  is  settled  in  the  minds  of  the  peo- 
ple already.  Massachusetts  will  follow  the  manly  examples 
of  New  Hampshire,  Delaware,  Connecticut,  and  Rhode  Isl- 
and ;  and  that  your  honest' vote  will  contribute  to  this  desired 
consummation,  I  am  sure. 

Silas  Standfast. 


ADDRESS 

TO  THB 

CITIZENS  OF  riTCHBUHG, 

DELIVERED,  AT  THEIR  INVITATION, 


HON.  SAMUEL  HOAR. 

FROM  THE  BOSTON  JOURNAL,  NOVEMBER  1,  1853. 


16 


ADDEESS  OF  MR.  HOAE. 


Mr.  Hoar  said  he  had  been  invited  to  address  this  audience 
upon  the  subject  of  the  proposed  amendments  to  the  Consti- 
tution, and  he  had  consented  with  great  reluctance  to  do  so. 
He  felt  this  reluctance,  not  on  account  of  any  unwillingness 
to  make  known  to  his  fellow-citizens  the  views  which  he  had 
been  able  to  form  on  this  subject.  It  was  his  belief,  that  it 
is  the  duty  of  every  man  to  make  known  to  his  fellows,  when- 
ever and  wherever  he  has  the  opportunity,  his  views  upon 
questions  of  public  interest,  to  the  end  that  he  may  correct 
whatever  is  amiss  in  his  own  views,  and  aid  his  neighbors  in 
coming  to  correct  conclusions ;  and  in  this  way  he  will  render 
a  service  valuable  to  himself  and  to  them.  He  hoped  to  pre- 
sent his  views  in  a  candid  manner,  and  proposed  to  submit 
them  to  the  criticism  and  judgment  of  his  hearers.  If  these 
views  appeared  to  his  hearers  to  be  right,  he  hoped  they  would 
follow  them  ;  if  they  did  not  so  appear,  reject  them.  Heaven 
forbid  that  he  should  ask  any  one  to  pursue  any  other  course 
than  this. 

What  are  the  principles,  he  asked,  which  should  guide  us 
in  forming  our  opinions  and  giving  our  votes  in  the  approach- 
ing election  ?  Ought  we  to  be  governed  by  our  political  party 
prejudices?  Is  there  any  considerate,  fair-minded  man,  of 
sober  judgment,  who  will  not  at  once  answer  this  in  the  neg- 
ative ?  We  have  all  had,  in  the  course  of  our  lives,  strong 
political  party  attachments.  Ought  they  to  operate  in  a  case 
like  this  ?  If  they  do,  we  shall  suffer,  —  certainly,  inevitably.  It 
becomes  us  to  give  our  political  party  prejudices  to  the  winds, 


176  TWO    BAD    PROVISIONS. 

and  to  look  at  the  instrument  which  is  presented  to  us,  and  at 
that  alone,  without  any  consideration  of  who  it  was  that  pre- 
pared that  instrument. 

Mr.  Hoar  said  he  should  be  obliged  to  state  old-fashioned 
principles.  He  should  not  dare  to  present  to  an  audience,  for 
whose  judgment  he  should  have  any  respect,  principles  which 
are  not  well  understood  and  acted  on  by  the  citizens  of  Mas- 
sachusetts heretofore.  Let  us  then  look  at  the  propositions 
offered  to  us,  and  see  if  they  accord  with  the  principles  of 
equality,  of  justice,  of  natural  right.  If  they  conform  to  this 
test,  let  us  adopt  them  without  further  inquiry,  for  they  will 
be  for  the  benefit  of  the  whole  people.  If  they  conflict  with 
it,  let  us  reject  them,  for  if  we  do  not  we  shall  suffier. 

Before  proceeding  to  examine  some  of  the  more  prominent 
provisions  of  the  new  plan,  Mr.  Hoar  said  he  would  speak  of 
several  which  to  him  seemed  right  and  just,  and  which  in  their 
tendency  would  have  a  salutary  effect  upon  the  whole  people. 
The  first  of  these  was  the  provision  for  single  Senatorial  Dis- 
tricts. This  ought  to  be  adopted,  for  reasons  obvious  to  all. 
There  is  justice  and  equality  in  it,  and  it  accords  with  the 
principle  embraced  in  the  present  Constitution,  of  securing 
equality  to  all.  Second,  the  increase  of  the  School  Fund,  and 
the  prohibition  of  its  ever  being  devoted  to  any  sectarian  or 
denominational  purposes.  These,  he  could  not  doubt,  would 
receive  the  approbation  of  his  fellow-citizens.  He  also  thought 
there  should  be  some  provision  made  by  which  a  citizen  hav- 
ing a  claim  against  the  State  could  have  an  impartial  and 
fair  hearing  in  his  case,  and  have  justice  secured  to  him. 
There  were  some  other  features  in  which  the  principles  were 
right  in  themselves,  but  the  modifications  of  which  were 
•wrong ;  but  he  had  not  time  to  stop  to  examine  them,  and 
would  pass  to  matters  of  more  importance. 

He  would  then  ask  the  attention  of  the  audience  to  two 
branches  of  the  proposed  plan,  to  which  he  could  not  give  his 
assent,  and  to  the  reasons  why  he  could  not  support  them. 
The  first  of  these  branches  was  in  regard  to  the  House  of 
Representatives.  That  plan  is  very  well  understood  to  be 
this :  — it  gives  to  every  town,  however  small,  a  representative 
six  years  in  ten ;  it  gives  to  every  town  having  1,000  inhab- 


INEQUALITY    OF    REPRESENTATION.  177 

itants,  one  representative  every  year ;  to  every  tov^n  having 
4,000  inhabitants, two  representatives  every  year;  to  every  town 
having  8,000,  three  representatives  every  year  ;  and  so  on  up- 
wards, making  4,000  the  mean  increasing  number  for  a  single 
representative.  The  present  Constitution  gives  to  every  town 
a  representative  as  often  in  the  course  of  ten  years,  as  the 
number  160  is  contained  in  the  number  of  its  inhabitants, 
and  the  right  also  of  a  representative  in  the  valuation  year. 
Every  town  having  1,200  inhabitants,  instead  of  1,000,  has  the 
right  to  a  representative  every  year,  and  2,400  instead  of  4,000 
is  made  the  mean  increasing  number.  The  change  is  obvious 
to  all. 

There  is,  for  some  reason,  an  existing  inequality  between 
the  representatives  from  the  small  and  large  towns.  A 
town  with  1,200  inhabitants  may  send  a  representative,  but 
a  second  cannot  be  sent  without  double  that  number.  In 
the  small  towns,  a  very  considerable  power  is  given  to  the 
voter  above  the  large  towns.  The  Convention  of  1780  af- 
firmed the  doctrine  that  the  natural  right  of  all  is  equal ;  the 
Convention  of  1820  reaffirmed  it,  and  even  this  last  Conven- 
tion also  reaffirmed  it,  and  it  should  not  be  departed  from 
without  good  and  sufficient  reason.  It  is  not  a  sentiment  of 
antiquity,  but  is  embraced  in  our  present  Bill  of  Rights,  in 
such  expressions  as,  "All  men  are  born  free  and  equal";  —  "The 
people  have  the  right  to  invest  the  Legislature  with  authority  "  ; 
—  "  All  power  resides  in  the  people";  — "  There  shall  be,  in 
the  Legislature  of  this  Commonwealth,  a  representation  of 
the  people,  annually  elected,  and  founded  upon  the  principles 
of  equality."  These  last  words  are  in  the  proposed  plan  as 
clearly  as  in  the  others  of  1780  and  1820 ;  and  in  order  to  pro- 
vide "  for  a  representation  of  the  people  on  the  principle  of 
equality,"  it  goes  on  to  make  a  provision  which  gives  a  rep- 
resentative to  the  small  towns  with  not  more  than  50,  and,  in 
some  cases,  not  more  than  20  voters,  six  years  out  of  ten, 
and  makes  the  mean  increasing  number  4,000,  instead  of  2,400, 
for  the  large  towns ;  and  yet,  in  the  small  towns,  makes  the 
number  requisite  to  secure  a  representative  1,000,  instead  of 
1,200.  Are  these  provisions  in  accordance  with  the  principles 
of  equality  which   I  have  read  ?     Do  they  carry  out  those 


178  INEQUALITY    OF    REPRESENTATION. 

principles,  or  do  they  violate  them  ?     If  the  former,  adopt 
them  ;  if  the  latter,  reject  them. 

The  results  of  these  changes  must  be  great.  But  these  are 
not  the  worst  features  of  this  plan.  Let  us  look  further,  and 
see  how  they  compare  with  the  principles  of  equality  or  nat- 
ural right.  He  did  not  propose  to  enter  into  a  minute  com- 
parison of  the  effect  of  this  new  plan  in  the  case  of  particular 
small  towns,  where  it  gives  to  a  voter  in  one  town,  two,  three, 
five,  six,  and  in  some  cases  ten  times  the  power  of  a  voter  in 
another  town.  It  would  occupy  more  time  than  he  had.  He 
would  look  at  some  more  general  results.  It  had  been  calcu- 
lated that  the  proposed  plan  would  give  the  control  of  the 
State,  so  far  as  the  House  of  Representatives  is  concerned,  to 
one  third  of  the  inhabitants  of  the  State,  —  that  is  to  say, 
that  one  third  shall  govern  the  other  two  thirds.  Some  say 
this  is  not  quite  true ;  but  if  it  approximates  to  that,  he  would 
ask  if  it  is  in  accordance  with  the  principles  of  equality. 
The  people  govern,  not  the  corporations.  Some  calculations 
have  been  made  on  a  larger  scale.  Franklin  County  is  al- 
lowed, by  this  plan,  one  representative  for  every  1,450  inhab- 
itants ;  Bristol  County,  one  for  every  2,870  inhabitants.  Sup- 
pose I  stop  here,  and  have  not  another  statement  to  make,  is 
this  according  to  the  principle  of  equality  ?  What  is  the 
difference  between  these  two  counties.  There  are  not  found 
here  the  Irishmen  who  are  found  in  Boston  or  Fitchburg,  and 
who  are  given  as  the  reason  for  these  inequalities.  What  has 
Bristol  done  that  her  men  have  not  the  right  to  vote,  and  that 
her  votes  are  not  as  good  as  the  men  of  Franklin  ?  Do  you 
suppose  the  people  of  Bristol  will  be  satisfied  with  this  sys- 
tem, if  it  is  fastened  upon  them  ?  Are  we  doing  them  justice 
in  voting  for  it  ?  And  is  it  not  your  wish  to  do  justice  in  the 
matter  ? 

Again,  Nantucket  will  have  a  representative  for  every  2,026 
inhabitants.  Suffolk  one  for  every  3,877.  I  will  now  come 
to  a  still  more  general  statement.  The  five  counties  west  of 
Middlesex  —  Worcester,  Hampden,  Hampshire,  Franklin,  and 
Berkshire  —  have  a  representative  for  1,884  inhabitants,  and  the 
rest  of  the  State  one  for  2,731.  Is  this  equal  ?  There  must 
be  a  new  meaning  affixed  to  the  word  if  this  be  equality,  nat- 


JUDICIARY.  179 

ural  right,  or  justice.  Can  we  expect  tiiat  the  different  sections 
of  this  Commonwealth  will  rest  satisfied  with  such  provisions 
in  regard  to  its  representation  ?  Can  you  expect  that  any  part 
of  the  State,  which  may  get  more  than  its  equal  right,  will  on 
the  whole  gain  any  benefit  by  such  a  violation  of  the  princi- 
ple of  equality  ?  No.  Men  do  not  enjoy  that  which  they 
get  wrongfully,  and  the  same  applies  to  communities.  They 
as  individuals  will  receive  the  penalty  of  any  violation  of  the 
great  principles  of  justice  or  of  right.  I  repeat  the  question  : 
Is  this  fair,  or  honest,  or  right  ?  Does  this  proposed  plan  tend 
to  diminish  or  increase  the  present  inequalities  ?  If  the  state- 
ments which  have  been  made  approach  correctness,  the  de- 
cision must  be  against  it. 

The  friends  of  this  plan  say,  "  We  go  in  favor  of  town  rep- 
resentation." Is  it  the  corporations  which  frame  our  laws, 
or  the  people  ?  the  corporations,  or  the  mind,  the  intelligence 
of  the  Commonwealth,  as  embodied  in  the  laws  of  the  State, 
which  is  to  govern?  He  had  seen,  in  the  remarks  of  some 
persons  who  wished  to  sustain  this  great  injustice,  the  argu- 
ment, that  we  must  preserve  the  town  institution, —  that  this 
institution  had  been  of  great  benefit.  All  these  arguments 
assumed  that  these  town  institutions  will  be  lost,  unless  we 
give  to  a  man  in  one  town  two,  three,  five,  or  ten  times  the 
power  we  give  to  a  man  in  another  larger  town.  He  could 
see  no  reason  in  this.  If  it  be  right  that  the  five  counties 
west  of  Middlesex  shonld  have  a  representative  for  every  1,884 
inhabitants,  and  that  the  rest  of  the  State  should  have  its 
power  diminished  one  quarter,  a  good  reason  should  be  given 
for  it. 

Mr.  Hoar  next  alluded  to  the  proposed  changes  in  the 
Judiciary,  which  in  importance  he  considered  exceeded  even 
the  inequality  in  the  system  of  representation.  On  this  point 
he  would  not  trust  his  own  views  alone ;  but  finding  them 
supported  by  the  Conventions  of  1780  and  1820,  and  ac- 
knowledged by  the  recent  Convention,  he  felt  that  he  had 
some  foundation  for  presenting  them.  The  existing  Consti- 
tution declares,  that  "  it  is  the  right  of  every  citizen  to  be 
tried  by  judges  as  free,  impartial,  and  independent  as  the  lot 
of  humanity  will  admit " ;  and  it  further  says,  "  It  is,  therefore, 


180  TENURE    OF    JUDGES. 

not  only  the  best  policy,  but  for  the  security  of  the  rights 
of  the  people  and  of  every  citizen,  that  the  Judges  of  the 
Supreme  Judicial  Court  should  hold  their  offices  as  long  as 
they  behave  themselves  well."  Thus  speaks  the  existing  Con- 
stitution. The  proposed  plan  embraces  the  same  words  in 
part,  but  says  it  is  the  best  policy,  &c.  that  the  Judges  "  shall 
hold  their  offices  by  tenures  established  by  the  Constitution,^^  — 
not  "  while  they  behave  themselves  well."  Here  is  a  change 
proposed  which  is  fundamental.,  and  it  means  a  good  deal. 
Will  it  not  have  the  effect  to  make  the  opinion  of  the  judge 
depend  upon  the  opinion  of  those  who  have  the  power  at  the 
expiration  of  his  tenure  of  office,  which  is  fixed  at  ten  years, 
to  turn  him  out  ? 

A  man  fit  to  be  a  judge  should  be  a  man  of  high  character, 
of  integrity  unspotted,  of  profound  learning  in  the  law,  —  a 
man  of  some  experience  in  the  law.  Supposing  a  judge  have 
not  these  qualities,  what  would  be  the  consequence  ?  Every 
man  who  in  court  has  seen  a  comparatively  weak  man  on  the 
bench  (a  sight  seldom  seen  on  the  Supreme  Bench  in  Massa- 
chusetts) —  and  on  one  side  an  able  advocate,  and  on  the 
other  a  comparatively  weak  one  —  knows  his  feelings,  as  he 
has  seen  the  law  wrested  from  the  hands  of  the  judge,  and,  in 
point  of  fact,  the  advocate,  and  not  the  judge,  making  the  law. 
Do  you  want  such  judges  in  Massachusetts?  or  do  you  want 
men  on  the  Supreme  Bench  and  in  the  Court  of  Common 
Pleas  who  are  not  exceeded  by  the  advocates  at  the  bar,  — 
judges  who  cannot  be  controlled  and  led  away, — who  will 
enforce  the  laws  as  the  Legislature  says  they  exist, —  who  will 
give  security  to  the  weak  as  well  as  the  strong,  the  poor  as 
well  as  the  rich,  —  who  will  show  no  favor  or  affection  for  one 
or  the  other, — judges  who  can  and  will  execute  the  law 
equally,  impartially,  and  independently  ? 

But,  say  the  friends  of  the  new  plan,  may  not  the  judges 
be  reappointed  at  the  expiration  of  the 'ten  years?  Mr.  Hoar 
answered  this  question  by  citing  the  case  of  the  sheriffs  under 
the  present  system,  who,  on  every  change  of  political  power, 
—  though  most  excellent  officers, —  have  been  turned  out  to 
make  room  for  the  political  friends  of  the  administration.  Sup- 
pose the  time  of  a  judge  near  its  close,  and  he  has  an  impor- 


TENURE    OF    JUDGES.  181 

tant  case  to  decide,  the  decision  of  which  may  affect  those 
who  have  the  power  of  his  reappointment,  will  not  this  fact 
have  a  tendency  to  swerve  his  judgment  ?  Are  we  as  sure  of 
impartial  judgment,  as  though  the  judge  were  entirely  inde- 
pendent of  the  Executive  ? 

Is  this  change,  he  asked,  a  trifle,  or  a  matter  of  most  im- 
mense importance  ?  To  him  it  appeared  to  be  the  latter.  It 
is  a  blow  struck  at  the  Judiciary,  and,  if  carried  into  effect  by 
our  votes,  will  be  felt  over  the  whole  State.  And  this  is  not 
all.  The  whole  proceedings  in  regard  to  the  Judiciary  have  a 
tendency  to  break  it  down.  Will  you  be  likely  to  get  the  first 
and  best  men  in  the  profession  to  take  the  office  on  such  con- 
ditions ?  There  is  a  difficulty  even  now  in  getting  them  to  do 
it.  Common  sense  teaches  us  that  they  will  not  accept  it,  if 
it  be  made  still  less  worthy  of  acceptance.  Does  there  any 
evil  exist  which  will  justify  such  a  change  as  is  here  proposed  ? 
He  knew  of  none. 

Another  proposed  change  is,  that  the  Clerks  of  Courts,  in- 
stead of  being  appointed  by  the  Judges,  shall  be  chosen  by  the 
people  for  a  term  of  three  years.  Where  is  the  reason  for 
this?  He  knew  of  but  one, — that  there  may  be  one  more 
office  to  be  scrambled  for  in  our  elections.  In  what  possible 
way  are  the  people  to  be  benefited  by  this  change  ?  How 
well  are  the  people  qualified,  let  me  ask,  to  vote  for  a  Clerk 
of  the  Courts  in  Nantucket,  or  in  Berkshire,  or  Franklin,  or 
in  your  own  county?  Why  should  not  the  courts,  who  know 
what  kind  of  men  they  need  to  record  their  rulings  and  de- 
cisions correctly,  have  the  power  to  appoint  their  own  clerks, 
and  such  men  as  they  wish  ?  He  hoped  this  question  would 
be  answered  at  the  ballot-box.  Did  you  ever  know  a  clerk 
appointed  by  a  court  for  a  sinister  purpose  ?  Can  the  people 
do  it  as  well  as  their  agents,  the  judges?  No,  —  the  whole 
thing  is  impossible,  radically  wrong  and  unnecessary,  except 
for  the  purpose  of  the  politician  who  wishes  to  flatter  the 
people  for  his  own  benefit.  If  you  elect  the  Clerk  of  the 
Court  by  the  people,  why  not  elect  the  Clerk  of  the  House 
of  Representatives  ?  Suppose  the  clerk  who  holds  office  by 
the  power  of  the  people  should  refuse  to  obey  the  court,  the 
public  business  must  suffer  unnecessary  delay,  or  the  Judges 
17 


182  TENURE    OF   JUDGES. 

of  the  Supreme  Court  must  go  as  humble  suitors  to  the  Ex- 
ecutive, and  ask  for  the  removal  of  the  clerk.  Do  you  believe 
they  will  do  this  ? 

Mr.  Hoar  then  took  up  the  provision  in  the  Bill  of  Rights, 
in  which  the  executive,  legislative,  and  judicial  departments 
are  prohibited  from  exercising  the  powers  or  duties  of  each 
other,  and  most  clearly  showed  that  it  was  violated  in  the  pro- 
posed Constitution,  by  allowing  the  Governor,  with  the  con- 
sent of  the  Council,  or  without  that  consent^  on  complaint  for 
incapacity,  misconduct,  or  maleadministration  in  office,  to  re- 
move Judges  of  Probate,  Commissioners  of  Insolvency,  County 
Commissioners,  &c.  Not  only  can  the  Governor  remove  such 
officer,  but  he  may  appoint  some  one  to  his  office  —  until 
the  case  be  heard  and  settled ;  and  in  the  mean  time 
parties  interested  in  this  removal  may  have  secured  their  own 
ends,  to  the  wrong  and  injury  of  other  parties  equally  inter- 
ested. It  is  estimated  that  once  in  twenty  years  the  entire 
property  of  the  Commonwealth  passes  under  the  inspection 
of  the  Judges  of  Probate,  and  it  is,  therefore,  of  the  highest 
importance  that  they  should  be  straightforward,  high-minded 
men.  Will  this  new  plan  tend  to  secure  such  ?  He  thought 
not.  Conferring  this  power  of  the  removal  of  the  Judges  of 
Probate  and  other  officers  by  the  Governor,  is  also  creating  a 
new  court,  a  new  judicial  power  in  our  State,  hitherto  un- 
known. 

And  there  is  still  another  blow  at  the  Judiciary.  It  is  pro- 
vided in  one  of  the  separate  propositions,  that  the  jury,  and 
not  the  judge,  shall  settle  the  law  in  all  criminal  cases.  What 
will  be  the  result?  Men  who  compose  the  juries  do  not  de- 
vote their  lives  to  the  study  of  the  law.  Will  they  be  as 
likely  to  decide  right  as  the  judges  ?  And  who  is  to  correct 
their  decision  in  case  it  be  wrong  ?  With  the  present  system, 
the  decision  of  the  judges  in  the  lower  courts,  if  wrong,  can 
be  corrected  by  the  judges  of  the  Supreme  Court.  If  juries 
decide  the  law,  there  is  no  possible  way  of  settling  their  cor- 
rectness. And  the  result  will  be,  that  you  will  have  no  system 
of  law  at  all.  The  same  law  will  be  construed  differently  in 
different  courts,  and,  it  may  be,  on  different  sides  of  the  same 
court-house.     It  will  be  a  government  of    men,  and  not  of 


JURIES  JUDGES  OF  THE  LAW.  183 

laws;  and  questions  involving  the  property,  character,  life 
even,  will  be  made  to  depend  upon  the  views  of  the  men  who 
may  be  on  the  jury.  A  man  guilty  of  murder  may  be  con- 
victed or  get  clear,  according  to  his  popularity  or  unpopularity 
with  the  jury. 

In  their  manner  of  submitting  the  new  plan  to  the  people, 
the  friends  of  the  measure  have  shown  that  they  are  afraid  to 
trust  the  people.  It  is  so  arranged  that  we  must  take  the 
whole  or  none.  Is  this  fair,  or  right,  or  honest,  towards  the 
people  ?     Must  we  swallow  poison  to  get  a  mouthful  of  food  ? 

There  were  other  points  upon  which  he  would  have  spoken 
had  there  been  time; — but  he  must  stop.  What,  he  asked, 
shall  we  do  ?  Why  should  we  make  these  innovations  ?  and 
what  shall  we  deserve  if  we  go  to  tampering  with  those  great 
principles  of  equality  and  of  right  which  have  been  secured 
^  to  us  as  the  fruits  of  the  labor  of  such  men  as  formed  our 
present  Constitution  ?  What  became  of  the  old  Italian  re- 
publics, and  where  is  the  French  republic?  The  political 
parties  quarrelled  and  secured  to  themselves  anarchy  and 
despotism  ;  —  and  that  is  what  we  shall  merit  if  we  trifle  with 
such  blessings  as  have  been  given  to  us,  and  under  which  we 
have  so  abundantly  prospered.  High-minded  men,  who  under- 
stood its  provisions,  made  the  present  Constitution,  and  it  has 
answered  its  purpose.  Our  duties  in  regard  to  it  we  are  now 
to  answer  at  the  ballet-box. 


ADDRESS 

TO   THE 

CITIZENS  OF  TAUNTON, 

DELIVERED,  AT  THEIR  INVITATION, 
NOVEMBER  4 -7,  1853, 

BT 

HON.  MARCUS  MORTON. 


17' 


ADDEESS  OF  ME.  MORTON. 


Mr.  Chairman,  —  I  desire,  in  the  outset,  to  ask  permission 
to  dispense  with  the  customary  parliamentary  form  of  address- 
ing an  assembly  through  its  presiding  officer,  and  to  speak 
directly  to  my  fellow-townsmen  here  assembled. 

The  Chairman.  —  Proceed,  Sir,  in  the  way  most  agreeable 
to  yourself. 

Fellow-Citizens,  —  It  gives  me  pleasure  once  more  to 
look  upon  your  frank  and  honest  upturned  countenances,  and 
I  hope,  on  this  evening,  to  present  to  you,  in  return,  one  as 
honest  and  frank  as  your  own.  You  cannot  but  feel  some 
surprise  to  see  me  addressing  a  political  assembly,  on  the  eve 
of  an  election  ;  and  I  confess  that  I  feel  no  little  surprise 
myself.  It  is  now  nearly  a  quarter  of  a  century  since  I  ap- 
peared in  this  capacity.  I  had  fully  determined  not  again  to 
be  drawn  from  the  quiet  and  peaceful  pursuits  of  private  life, 
to  take  any  public  part  in  the  turmoil  of  party  strife  and  of 
political  warfare.  I  intended  to  confine  my  political  labors  to 
what  is  every  citizen's  duty,  —  to  a  careful  inspection  of  the 
proceedings  of  our  public  agents,  to  the  free  discussion  with 
my  neighbors  of  public  measures,  and  to  the  efficient  expres- 
sions of  my  opinions,  by  my  suffrage,  at  the  polls. 

But  when  my  fellow-townsmen  desired  my  services  in  the 
Convention  called  to  revise  and  amend  our  Constitution,  I 
could  not  well  resist  the  call.  The  duty  required,  though 
political,  was  so  unlike  ordinary  political  duty,  and,  in  my 
view  of  it,  so  unlikely  to  involve  party  spirit,  and  its  manoeu- 
vres and  intrigues,,  that  I  could  see  no  good  reason  for  with- 


188  ADDRESS    OF    MR.    MORTON. 

holding  my  labors  and  my  experience,  if  they  were  deemed  of 
any  value.     I  accordingly  entered  into  the  Convention,  and 
that  I  got  deeply  interested  in  the  proceedings  of  that  body, 
and  was  greatly  disappointed  in  its  transactions  and  in  the 
results  of  its  labors,  I  will  not  attempt  to  conceal.     My  views 
on  these  matters  were  well  known.     But  it  was  not  my  pur- 
pose to  appear  before  the  public  to  defend  or  advocate  them. 
And   I  declined   many  invitations   to  address   audiences  in 
various  places,  from  the  Cradle  of  Liberty  in  the  metropolis  to 
the  town-hall  of  a  country  village.     But  the  invitation  of  my 
Democratic  constituents,  which  was  addressed  to  me,  in  com- 
mon with  my  colleagues,  requesting  us  to  give  an  account  of 
the  proceedings  of  the  Convention,  and  our  views  of  the  result 
of  its  labors,  came  upon  me  with  the  potency  of  a  mandate. 
Believing,  as  I  do,  that  every  representative  is  strictly  respon- 
sible to  his  constituents,  and  imperatively  bound  to  render  an 
account  of  his  stewardship  when  called  upon  by  them,  I  could 
not  decline  this  invitation. 

I  have  no  authority  to  speak  for  my  colleagues.  But  I  will 
assume  to  say,  that  in  devoted  attention  to  the  business  before 
the  Convention,  in  sincere  endeavors  to  promote  the  welfare 
and  best  interests  of  the  people,  and  to  render  our  Constitution 
more  equal,  just,  and  democratic,  we  were  not  surpassed  by 
the  delegates  of  any  other  town.  And  I  trust  I  may  say  in 
your  presence,  that  we,  in  a  good  measure,  succeeded  in  rep- 
resenting the  true  interests,  opinions,  and  wishes  of  our  con- 
stituents. 

I  now  speak  for  myself.  And  I  enter  upon  the  duties 
required  of  me  with  pleasure  and  with  grief.  While  it  gives 
me  pleasure  to  respond  to  your  call,  and  to  lay  before  you,  for 
your  approbation  or  condemnation,  ray  own  course  of  action, 
it  is  with  grief  and  regret  that  I  present  to  your  consideration 
the  results  of  the  labors  of  the  Convention.  These  I  can 
neither  approve  nor  justify.  Indeed,  I  will  not  deny  that  it  is 
a  source  of  gratification  to  me,  that  I  have  been  furnished 
with  this  opportunity  to  enter  my  public  protest  against  meas- 
ures so  unrighteous  and  anti-democratic  as  these  seem  to 
me  to  be. 

Before  commencing  the  discussion  of  the  proposed  consti- 


ADDRESS    OF    MR.   MORTOX.  189 

tutional  amendments,  I  must  ask  permission  to  make  one  or 
two  more  preliminary  remarks. 

The  call  which  brings  me*  before  you  this  evening  comes 
directly  from  my  Democratic  fellow-citizens.  But  I  am  most 
happy  to  see  before  me  citizens  of  all  shades  of  political 
opinion.  And  to  you  all  I  acknowledge  my  responsibility, 
and  to  you  all  do  I  render  my  account.  I  cannot,  and  I 
would  not  if  I  could,  disguise  the  character  in  which  I  appear. 
I  am  a  Democrat.  I  have  served  in  the  Democratic  ranks  for 
almost  half  a  century.  Although  I  have,  on  two  or  three 
occasions,  been  constrained  to  differ  from  my  political  friends, 
I  have  never  joined  any  other  organization.  It  is  true  I  have 
now  and  then  attended  mass  meetings  of  every  known  party, 
to  hear  distinguished  orators,  whose  doctrines  I  have  some- 
times approved  and  sometimes  disapproved,  but  I  never  was 
a  delegate  to  or  attended  any  political  convention  other  than 
a  Democratic  convention.  And  although  I  may  not  yield  so 
implicitly  as  some  to  the  binding  force  of  party  conventions, 
and  do  not  deem  the  decrees  of  a  caucus  more  obligatory 
than  the  dictates  of  conscience,  I  believe  I  have  as  seldom 
deviated  from  the  caucus  nominations  as  any  man  who  has 
attended  so  many  elections.  I  have  lived  and  trust  that  I 
shall  die  in  the  Democratic  faith.  I  must  therefore  test  the 
proposed  constitutional  amendments,  and  the  proceedings  of 
the  Convention,  by  Democratic  principles.  But  in  avowing 
with  perfect  freedom  my  own  opinions,  I  trust  I  shall  manifest 
a  becoming  regard  to  the  opinions  and  feelings  of  others. 

I  do  not  intend  to  speak  of  the  approaching  elections  of 
State  officers.  Nothing  could  induce  me  to  enter  into  a  pub- 
lic discussion  of  that  subject.  I  may,  however,  remark,  in 
passing,  that,  of  the  four  gubernatorial  candidates,  two  may 
be  deemed  Democrats  and  two  Whigs.  Perhaps  my  Whig 
friends  may  not  accede  to  the  correctness  of  this  classification. 
But  if  they  think  that  one  of  them  does  not  belong  to  any 
"healthy"  Whig  organization,  they  must  remember  how 
laboriously  and  zealously  he  has  served  them  in  former  times, 
and  that  he  has  never  renounced  any  of  the  sentiments  which 
he  then  advocated.  They  may  say,  as  they  have  said  before, 
that  he  and  his  Whig  associates  had  beqome  such  ultraists 


190  NON-RESIDENT    MEMBERS. 

and  extremists,  that,  having  lost  their  homogeneity  with  their 
old  party,  they  had  sloughed  off";  and  having  failed  to  obtain 
that  advancement  which  they  ^thought  they  deserved,  had 
formed  a  new  organization,  in  the  hope  that  they  would  there 
find  a  more  just  appreciation  of  their  merits,  and  a  more  ade- 
quate remuneration  of  their  services.  But  between  these  sev- 
eral candidates  it  is  not  my  intention  to  express  an  opinion,  or 
even  to  indicate  my  own  preference. 

One  important  error  in  the  constitution  of  the  Convention 
was,  in  the  outset,  overlooked,  or  not  sufficiently  considered. 
The  act  authorizing  the  Convention  was  so  construed  as  to 
justify  towns  in  electing  delegates  who  were  not  inhabitants 
of  the  towns  by  whom  they  were  elected.  This,  in  my  opin- 
ion, is  a  capital  error.  It  is  the  worst  feature  in  the  election 
of  the  members  of  the  British  House  of  Commons.  Members 
thus  chosen  may  be  wise  statesmen  and  skilful  constitution- 
mongers,  but  they  cannot  be  true  representatives  of  their  con- 
stituencies. A  knowledge  of  a  people,  acquired  by  a  continued 
residence  among  and  intercourse  with  them,  can  alone  suffi- 
ciently identify  a  man  with  them  to  enable  him  truly  to  repre- 
sent their  wishes  and  wants,  their  peculiarities  and  principles. 
The  representative  of  the  people  should  correctly  reflect  the 
minds  of  his  constituents,  which  he  can  never  do  unless  he 
partakes  of  their  labors,  their  wants,  and  their  enjoyments, 
and  is  one  of  them.  The  representative  should  be  a  daguerre- 
otype of  his  constituents,  which  an  absentee  can  no  more  be, 
than  such  a  likeness  of  an  individual  can  be  taken  in  his 
absence. 

It  is  the  right  of  the  people  to  originate  and  form  their 
frame  of  government,  as  well  as  to  adopt  and  ratify  it  in  the 
shape  of  a  written  constitution.  And  the  representative  of 
each  constituency  should  bring  into  convention  a  true  likeness 
of  his  principals,  and  thus,  by  comparing,  assimilating,  and 
amalgamating  the  views  of  the  several  constituencies,  an 
aggregation  may  be  formed  which  will  be  the  true  voice  of  the 
people  of  the  whole  Commonwealth,  and  the  nearest  possible 
approximation  to  the  voice  of  each  individual  in  it. 

Another  very  great  and  insuperable  objection  to  non-resi- 
dent members  is  the  door  which  it  opens  for  political  intrigue 


NON-RESIDENT    MEMBERS.  191 

and  corruption,  and  for  the  outside  influence  of  practised  poli- 
ticians and  party  managers.  It  impairs  the  free  choice  and 
independent  action  of  the  electors  themselves.  There  were  in 
our  Convention  some  ten  or  twelve  non-resident  members, 
some  of  whom  never  saw  the  towns  which  they  were  chosen 
to  represent;  and  it  is  well  known  that  extraneous  appliances 
procured  the  election  of  some,  if  not  all,  of  them.  I  this 
morning  accidentally  read,  in  one  of  the  most  respectable 
newspapers  in  the  United  States,  an  article  written  by  a  very 
able  and  strenuous  advocate  of  the  proposed  amendments,  of 
the  Free  Soil  party,  and  of  their  candidate  for  Governor,  in 
which  he  says,  "  The  friends  of  State  Reform  contrived  to 
procure  the  nomination  of  a  number  of  distinguished  Demo- 
crats and  Free-Soilers  as  candidates  for  the  Constitutional 
Convention  from  towns  of  which  they  were  not  residents. 
These  were  in  all  cases  triumphantly  elected.  These  nomina- 
tions were  chiefly  effected  through  the  influence  of  General 
Wilson." 

It  is  not  my  intention  to  impute  any  thing  improper  or  dis- 
honorable to  the  non-resident  members  of  the  Convention, 
either  in  the  mode  of  their  election  or  in  their  conduct  in  the 
Convention.  I  deal  not  with  motives.  My  object  is  to  show 
the  error  of  the  principle.  But. when  I  name  men  so  distin- 
guished for  their  eloquence,  their  learning,  and  their  political 
experience  as  C.  Sumner,  Boutwell,  Hallett,  Griswold,  Keyes, 
Dana,  I.  Sumner,  Alvord,  and  Burlingame,  it  is  unnecessary 
for  me  to  add  that  they  exercised  a  controlling  influence 
over  the  Convention,  and  that  the  results  of  its  deliberations 
are  different  from  what  they  would  have  been  had  their  con- 
stituencies been  represented  by  their  own  fellow-townsmen. 
That  the  results  are  wiser,  perhaps  we  ought  to  presume; 
but  whether  more  consonant  to  the  will  of  the  people  remains 
to  be  tested. 

Our  old  Constitution  was  framed  by  wise  and  patriotic 
statesmen.  It  contained  all  the  elements  of  a  free  govern- 
ment. It  was  democratic  in  principle,  and  adapted  to  the 
genius  of  a  free  people.  Under  it  we  have  grown  and  pros- 
pered beyond  precedent.  It  has  secured  to  our  people  liberty 
and  happiness.     We  have  enjoyed  our  political  rights  to  an 


192  CONVENTION    OF    1820. 

extent  and  with  a  security  which  a  wise  Constitution  alone 
can  guarantee. 

One  of  the  great  and  crowning  excellences  of  a  democratic 
government  is,  that,  without  a  change  of  its  principles,  it 
always  adapts  itself  to  the  ever-changing  circumstances  of  the 
people.  Hence  it  ever  keeps  up  with,  and  promotes  and  sus- 
tains, the  progressive  improvements  of  the  State,  in  popula- 
tion, wealth,  and  knowledge.  These  changes  called  loudly  for 
a  change  in  our  Constitution.  A  principle  of  representation 
which  very  nearly  approximated  to  equality,  and  was  fair  and 
just  in  a  population  of  two  hundred  thousand,  became  ex- 
tremely imperfect  and  unrighteous  when  that  population  had 
doubled  and  quadrupled.  The  great  increase  of  the  Com- 
monwealth rendered  alterations  in  other  respects  necessary. 
Accordingly,  a  Convention  was  called  in  1820 ;  and  though  it 
did  not  accomplish  all  which  the  friends  of  reform  desired,  yet 
it  made  many  improvements,  and  set  an  example  of  modera- 
tion and  patriotism  worthy  of  imitation,  and  which  had  much 
influence  in  recommending  to  the  favor  of  the  people  the  last 
Convention. 

Many  amendments  were  proposed,  some  of  which  were 
adopted  and  some  rejected.  But  the  greatest  imperfection  of 
the  whole,  that  of  the  representation,  remained  unremedied. 
Indeed,  every  attempt  to  amend  this  increased  the  evil,  both 
in  principle  and  practice.  The  gross  inequality  of  the  repre- 
sentation and  the  unwieldy  magnitude  of  the  House  were 
universally  condemned,  and  a  remedy  called  for  by  the  whole 
mass  of  the  people.  This,  with  other  amendments  which 
time  and  progress  had  rendered  necessary,  seemed  to  demand 
a  revision. 

Accordingly,  a  Convention  was  proposed.  It  was-at  first 
rejected  by  the  people  ;  but  upon  a  second  trial  it  was  adopted 
by  about  seven  thousand  majority.  The  manner  in  which  the 
Convention  was  called,  and  the  majority  obtained  in  its  favor, 
were  exceedingly  unpropitious  to  the  wise  and  beneficial  action 
of  the  body.  The  leader  of  a  certain  party,  who  has  been 
publicly  and  boastfully  denominated  "the  champion  of  the 
Commonwealth,"  declared  in  debate,  in  the  Convention,  that 
this  majority  was   "obtained  with  immense  labor,  and  the 


PARTY    SPIRIT.  193 

writing  and  distributing  of  almost  innumerable  letters."  The 
question  of  a  Convention  assumed  the  form  of  a  heated  party 
contest  and  a  fierce  struggle  for  ascendancy  between  the  con- 
tending parties. 

Under  these  circumstances,  I  entertained  great  doubts  of 
the  wisdom  of  calling  the  Convention.  I  saw  the  full  force 
of  these  objections,  and  cannot  offer  the  apology  of  ignorance 
or  inadvertence.  But  the  defects  of  the  old  Constitution  were 
so  gross,  and  called  so  loud  for  amendment ;  the  Convention 
of  1820  furnished  so  favorable  an  example  of  coolness,  delib- 
eration, and  freedom  from  party  ;  and  I  had  so  strong  a  hope 
and  belief,  that,  whatever  heat  might  have  existed,  when  the 
people  came  to  elect  delegates,  they  would  forget  their  party 
in  recollection  that  the  Constitution  was  to  be  made,  not  for  a 
year,  but  for  perpetuity,  not  for  a  party,  but  for  the  whole  people, 
—  that  I  voted  for  it.  I  will  not  shrink  from  my  share  of  the 
responsibility  of  having  called  the  Convention.  But  I  need  not 
now  say,  that,  had  I  foreseen  the  course  which  the  Convention 
adopted,  and  the  result  to  which  they  came,  I  should  have 
voted  differently. 

But  although  I  saw  the  political  contest  in  the  election  of 
delegates,  and  the  party  character  of  the  delegates  themselves, 
I  still  clung  to  the  hope,  that,  when  we  entered  into  the  hall  of 
constitutional  legislation,  we  should  remember  that  the  revis- 
ion of  the  Constitution,  and  the  introduction  of  new,  or  the 
modification  of  old  principles  of  organic  law,  required  the 
coolest  judgment  and  the  most  dispassionate  consideration  ; 
and  that,  on  passing  the  threshold  of  the  temple,  we  should 
shake  from  our  feet  the  dust  of  party  spirit,  party  prejudice, 
and  party  interest.  But  in  this  I  was  disappointed.  And  per- 
haps I  ought  to  have  expected  that  the  political  feeling  which 
prevailed  in  the  election  of  delegates  would,  by  them,  be  car- 
ried into  the  Convention,  and  there  mark,  if  it  did  not  mar,  its 
proceedings.  I  claim  no  exemption  from  the  influence  of 
party.  And  I  suppose  other  younger  and  more  aspiring  men, 
who  have  a  longer  and  brighter  future  before  them,  are  equally, 
and  perhaps  more,  liable  to  the  same  human  infirmity. 

But  the  worst  aspect  in  which  this  subject  presents  itself  is 
the  party  character  which  the  question  assumes  before  the 
18 


194  PARTY    TACTICS. 

people  themselves.  We  find  them  divided,  upon  the  question 
of  the  adoption  of  the  constitutional  amendments,  very  nearly 
according  to  their  political  preferences.  Almost  all  of  one 
party  are  opposed  to  the  adoption  of  them,  and  nearly  all  of 
the  other  are  in  favor  of  their  adoption.  Can  such  a  division 
be  the  result  of  a  dispassionate  and  impartial  investigation  of 
the  subject  ?  I  fear  not.  I  have  heard  it  said  in  high  places, 
that  "  it  is  enough  for  me  to  know  that  the  Whigs  oppose  a 
measure.  If  they  oppose  it,.  I  will  vote  for  it."  Is  this  the 
dictate  of  good  sense  and  a  single  desire  to  promote  the 
public  welfare?  or  is  it  the  offspring  of  political  animos- 
ity and  a  narrow-minded,  bigoted  devotion  to  party?  Such 
blind  adherence  to  party  dictation,  though  wrong  in  itself,  may 
not  be  very  dangerous  in  an  annual  election,  when  the  error  of 
one  year  may  be  corrected  the  next;  but  let  me  remind  you,  that 
we  are  now  about  to  establish  fundamental  rules,  which  must 
govern  the  action  of  our  children  and  our  children's  children 
for  many  generations.  Let  me  then  exhort  you  to  lay  aside 
all  political  predilections  and  preconceived  notions  of  the  effect 
which  our  decision  may  have  upon  the  one  party  or  the  other. 
Party  is  short-sighted.  Party  is  blind.  All  artificial  contrivances 
to  build  up  a  party  always  react  upon  their  authors,  and  sooner 
or  later  prostrate  the  party  they  were  intended  to  build  up. 
Be  assured  that  the  most  certain  way  to  promote  a  just  cause 
is  always  to  adhere  to  right  principles,  and  to  adopt  wise  and 
righteous  measures. 

I  have  seen,  with  deep  regret,  that  party  tactics  are  resorted 
to,  and  political  arrangements  made,  to  carry  this  constitu- 
tional measure,  just  as  if  it  were  a  mere  struggle  for  party 
ascendency.  Trained  orators,  practised  political  speakers,  are 
employed  to  travel  from  town  to  town,  all  over  the  State,  to 
address  the  people  on  this  important  subject.  Do  they  pre- 
sent both  sides  of  the  question  to  their  hearers  ?  or  do  they 
appeal  to  their  political  prejudices  and  party  fealty  ?  Would 
it  not  be  wiser,  and  more  respectful  to  the  people,  to  place  all 
the  documents,  bearing  on  this  subject,  in  every  man's  hands, 
to  be  carefully  examined  by  his  own  fireside  and  coolly  dis- 
cussed with  his  neighbor. 

And  do  these  itinerant  orators  devote  themselves  to  all  this 


WHAT    THE    CONVENTION    NEGLECTED.  195 

labor  from  purely  disinterested  and  patriotic  motives  ?  Are 
they  so  devoted  to  the  welfare  of  their  country,  —  is  their 
love  of  the  people  so  intense,  —  are  they  so  exceedingly  anx- 
ious to  procure  the  adoption  of  a  wise  and  just  constitution, — 
that  they  are  willing  for  weeks  and  months  to  neglect  their 
ordinary  business,  and  devote  their  whole  time  to  this  object? 
May  there  not  be,  after  all,  some  secret  self-interest,  unknown 
perhaps  to  themselves,  lurking  at  the  bottom  of  this  burning 
zeal  ?  May  not  certain  brilliant  offices,  for  the  attainment  of 
which  the  successful  result  of  this  struggle  may  seem  to  open 
the  door,  glitter  before  their  eyes.  May  not  any  of  those 
talented  and  eloquent  advocates,  from  one  who  has  graced 
the  chief  magistracy,  to  the  more  humble  aspirant  to  official 
honors,  honorably  aspire  to  these  high  places,  —  and  all  un- 
consciously labor  for  their  attainment.  Were  I  as  young, 
and  talented,  and  learned,  and  eloquent  as  they,  I  doubt  not 
that  I  should  be  as  likely  to  be  influenced  by  the  same  con- 
siderations. 

These  remarks  are  in  some  measure  preliminary.  And  in 
answering  your  call  for  an  account  of  the  proceedings  of  the 
Convention,  I  know  not  where  to  enter  upon  the  mass  of  mat- 
ter before  us ;  nor  how  better  to  address  myself  to  the  work 
than  by  acknowledging,  in  the  language  of  the  general  Epis- 
copal Confession,  that  "  we  have  left  undone  those  things 
which  we  ought  to  have  done,  and  we  have  done  those  things 
which  we  ought  not  to  have  done."  The  inference  which 
follows  I  will  leave  others  to  draw,  if  they  think  proper. 

This  quotation  suggests  a  convenient  division  of  this  great 
subject  into  three  branches.  And,  in  my  opinion,  a  fair  in- 
vestigation of  these  three  branches  will  show  enough  in  what 
we  omitted  to  do,  —  enough  in  what  we  did  do,  —  and  enough 
in  the  manner  in  which  we  did  it,  —  to  condemn  our  whole  pro- 
ceedings, and  to  render  the  duty  of  the  people  imperative,  to 
mark  the  whole  action  of  the  Convention  with  decided  dis- 
approbation. This  is  due  to  principle  and  to  precedent.  It 
is  due  to  themselves  and  to  their  posterity. 

We  are,  then,  to  consider  what  the  Convention  neglected  to 
do  which  it  was  their  duty  to  do,  what  they  did  which  their 


196  SOCIAL    COMPACTS. 

duty  forbade  them  to  do,  and  the  manner  in  which  it  was 
done.  In  each  of  these  branches  will,  in  my  opinion,  be 
found  that  which  should  condeinn  the  whole. 

First,  let  us  look  at  the  sins  of  omission. 

What  are  the  duties  of  the  members  of  such  a  Convention  ? 
Are  they  to  make  such  a  Constitution  as  they  individually 
prefer,  and  then  submit  it  to  the  people  for  their  action,  or 
are  they,  in  originating  and  forming  the  instrument,  to  exe- 
cute the  will,  and  to  represent  the  opinions  and  principles,  of 
the  people  who  elected  them  ?  A  monarch  of  Europe,  who 
was  about  to  give  a  constitution  to  his  subjects,  would  hold 
to  the  former.  But  no  one  who  believes  in  democratic  gov- 
ernment can  hesitate  to  adopt  the  latter.  In  this  country,  the 
right  of  the  people  to  originate  and  establish  civil  government, 
and  to  alter  and  amend  their  constitutions,  at  their  pleasure, 
is  the  universally  accepted  doctrine. 

The  first  social  compact  ever  written  was  that  formed  on 
board  the  Mayflower,  in  the  harbor  of  Cape  Cod,  in  1620.  In 
that  case  each  individual,  acting  in  his  original  sovereign  capa- 
city, put  his  own  name  to  the  compact.  All  stood  on  a  perfect 
equality.  All  participated  alike  in  the  execution  "of  the  com- 
pact, and  administering  the  government  under  it.  This  they 
continued  to  do,  till  their  number  became  so  large  that  they 
could  not  all  act  together.  Then  it  became  necessary  to  resort 
to  some  mode  by  which  each  individual  might  execute  his  equal 
share  of  the  power,  without  his  personal  attendance.  This 
could  only  be  done  through  duly  authorized  agencies.  One 
agent  could  speak  and  act  for  a  hundred  or  a  thousand,  and 
as  long  as  each  agent  acted  for  the  same  number  of  persons, 
each  preserved  his  equal  relative  right  and  power,  and  no 
one  gained  any  advantage  over  his  neighbor.  And  thus  orig- 
inated the  notion  of  representation,  which  is  a  modern  inven- 
tion unknown  to  the  ancients.  It  is  founded  on  the  principle 
of  perfect  equality,  each  individual  holding  just  the  same 
weight  with  every  other  individual  in  the  community. 

One  hundred  could  by  their  direct  action  form  a  govern- 
ment for  themselves.  But  when  that  hundred  had  become  a 
million,  they  could  not  assemble,  deliberate,  and  act  together ; 
they  could  only  institute  or  amend  their  form  of  government, 


COST    OF    THE    CONVENTION.  197 

in  the  first  instance,  through  their  agents.  These  agents  could 
prepare,  and  propose  to  the  people  for  their  adoption,  such 
provisions  as  might  be  deemed  promotive  of  the  best  interests 
and  just  rights  of  the  whole.  But  in  doing  this,  they  should 
be  the  just,  true,  and  faithful  representatives  of  those  who 
appointed  them.  They  had  no  right  to  inquire  what  would 
benefit  themselves,  or  promote  the  interest  of  any  party,  or 
enterprise,  or  section  of  the  Commonwealth.  But  they  were 
bound  truly  and  faithfully  to  execute  the  will  of  their  con- 
stituents. 

Our  Convention  was  called  for  specific  purposes,  to  redress 
existing  grievances,  which  had  been  indicated  in  various  ways 
and  were  perfectly  well  known  and  understood  by  every  man 
in  the  community,  and  of  course  by  every  member  of  the 
Convention.  The  delegate,  then,  who  thwarted,  or  neglected 
to  carry  out,  the  purposes  which  he  knew  were  entertained  by 
the  people  when  they  called  the  Convention,  or  who  evaded 
their  wishes  in  any  respect,  was  unfaithful  to  his  constituents, 
and  violated  a  fundamental  principle  of  free  government. 

One  of  these  purposes  of  the  Convention,  though  not  the 
most  important  one,  was  the  reduction  of  the  expenses  of  the 
government.  During  the  last  thirty  years  our  State  expendi- 
tures have  increased  from  $  200,000  to  $  600,000  per  annum. 
There  had  gone  up  a  universal  complaint  of  this  extrava- 
gance, and  an  imperative  demand  for  redress.  How  did  the 
Convention  meet  this  demand  ?  The  first  step  was  to  in- 
crease their  own  compensation  by  an  addition  of  fifty  per 
cent,  to  the  old  established  allowance.  Let  the  acts  of  the 
Convention  be  ratified,  and  we  have,  by  the  voice  of  the  peo- 
ple, which  never  will  be  controverted,  a  precedent  established, 
that  will  add  one  third  to  the  expenses  of  legislation  in  all 
after  time.  This  single  item  will  more  than  defray  the  ex- 
penses of  half  a  dozen  conventions,  should  they  be  deemed 
necessary,  to  do  what  this  Convention  neglected  to  do,  or 
to  undo  what  it  did  amiss. 

I  do  not  intend  to  argue  that  three   dollars  per  day  was 
more  or  less  than  the   services   of  the  members  were  worth. 
I  have  no  standard  by  which  to  measure  the  value  of  intel- 
lectual labor,  or  to  compare  the  mental  capacity  of  one  man 
18* 


198  REFORMS    NEGLECTED. 

with  another.  And  I  probably  should  not  have  noticed  this 
subject,  had  I  not  a  desire  to  advance  and  recommend  a 
principle.  I  hold  that  legislators  should  never  be  paid  for 
their  services.  This  is  the  immemorial  rule  in  the  British 
Parliament.  Motives  of  patriotism,  a  love  of  distinction,  a 
desire  to  be  useful  to  the  community,  laudable  ambition, 
furnish  inducements  quite  strong  enough  to  stimulate  men  to 
accept  and  seek  the  place  of  legislators.  I  would  not  add 
to  them  any  mercenary  stimulus.  But  I  would  never  shut 
the  door  of  promotion  against  the  poor,  any  more  than  the 
rich.  I  would  therefore  allow  a  fair  remuneration  of  the  ex- 
penses incurred ;  for  which  purpose  the  long  established  per 
diem  of  two  dollars  would  be  amply  sufficient. 

Another  way  in  which  the  people  demanded  a  reduction  of 
the  expenses,  was  by  a  great  diminution  of  the  number  of 
representatives.  How  has  this  demand  been  regarded  ?  Just 
as  the  last  was.  By  an  increase,  instead  of  a  reduction. 
There  was  no  one  reform  so  loudly,  so  universally,  and  so  im- 
peratively demanded,  as  the  diminution  of  the  House  of  Rep- 
resentatives and  the  equalization  of  the  basis  of  representation. 
But  the  action  of  the  Convention  on  this  subject,  not  being 
entirely  negative,  more  properly  belongs  to  the  second  branch 
of  the  discussion.  If  my  strength  holds  out,  it  shall  be  fully 
treated  hereafter. 

Another  demand  of  the  people  was,  that  useless  offices  should 
be  abolished.  This  was  required,  not  only  for  the  purpose  of 
saving  expense,  but  for  the  purpose  of  carrying  out  that  purely 
democratic  principle  which  tolerates  no  more  offices  than  are 
necessary  for  the  proper  transaction  of  the  public  business. 

Foremost  among  the  unnecessary  officers  were  ranked  the 
Councillors.  The  abolition  of  the  Executive  Council,  and  the 
transfer  of  the  Lieutenant-Governor  to  the  chair  of  the  Senate, 
certainly  were  among  the  reforms  desired  and  expected  by  the 
people.  Since  an  Auditor  had  been  established  to  settle  ac- 
counts ;  since  the  militia  had  got  so  reduced  as  to  leave  only  a 
light  duty  for  the  Adjutant- General  to  perform ;  since  the  pro- 
posed amendments  provide  for  the  election  of  most  of  the 
officers  by  the  people,  and  since  the  remainder  of  the  appoint- 
ments can  be  transferred  to  the  Senate ;  and  since  any  board 


REFORMS    NEGLECTED.  199 

of  officers  may  be  authorized  to  perform  the  clerical  duty  of 
counting  votes,  —  very  little  is  left  for  the  Council  except  their 
share  of  the  pardoning  power,  —  a  power  which,  from  the 
nature  of  their  board,  they  are  very  ill  qualified  to  administer. 
A  motion  was  made  to  dispense  with  these  officers.  A  long 
discussion  was  held,  and  soon  some  indications  began  to  man- 
ifest themselves  of  a  principle  which  I  fear  had  too  much  in- 
fluence in  other  deliberations  of  the  Convention.  Here  were 
nine  easy,  honorable  places,  well  suited  to  the  tastes  of  retiring 
politicians,  and  perhaps  nine  times  nine  delegates  who  might, 
if  parties  could  be  made  to  take  a  favorable  turn,  reasonably 
hope,  at  some  day  or  other,  to  occupy  these  comfortable  and 
dignified  seats.  It  is  not  my  intention  to  impute  sinister  mo- 
tives to  any  one  ;  but  I  cannot  shut  my  eyes  to  the  common 
frailties  of  our  nature.  The  question  dwindled  to  a  very  small 
point,  and  the  result  was  to  reduce  the  Council  from  nine  to 
eight,  and  vest  the  appointment  in  the  people. 

Another  great  evil  everywhere  complained  of  was  the 
length  of  the  sessions  of  the  legislature.  From  two  months 
they  had  from  time  to  time  been  extended  to  three  and  four, 
and  even  five  months.  A  remedy  for  such  a  gross  abuse  of 
power  by  a  limitation  of  the  annual  period  of  service  was 
loudly  called  for  by  the  whole  community.  The  joint  com- 
mittee of  the  Legislature,  who  recommended,  and  may  be  con- 
sidered the  authors  of,  the  Convention,  in  their  report,  which 
was  accepted  by  the  Legislature,  say,  "  There  is  nothing  in  the 
legislation  of  Massachusetts  which  has  given  rise  to  more 
well-grounded  complaints  among  the  people,  than  the  long 
sessions  of  the  last  four  or  five  years."  They  further  inquire, 
"What  necessity  exists  for  protracting  the  sessions  four  or  five 
months  each  year  ?  The  committee  believe,  that  a  session  of 
one  hundred  days  will  prove  sufficient  for  the  transaction  of 
all  necessary  business  by  the  Legislature." 

To  these  demands  of  the  people,  —  to  this  recommendation 
of  the  authors  of  the  Convention,  —  to  this  decisive  action  of 
the  Legislature,  —  the  Convention  could  not  be  both  deaf  and 
blind.  What  remedy  for  these  crying  evils  did  the  Conven- 
tion propose  ?  Early  in  the  discussion  of  this  subject,  I  of- 
fered the  following  amendment:  "  The  Legislature  shall  assem- 


200  REFORMS  NEGLECTED. 

ble  every  year;  but  shall  never,  except  in  case  of  insurrection 
or  invasion,  continue  in  session  longer  than  ninety  days,  nor 
sit,  during  any  year,  more  than  one  hundred  days."  That 
this  was  an  effective  limitation,  all  admitted.  Fellow-citizens, 
was  it  a  reasonable  one  ?  I  have  no  doubt  you  will  say  that 
it  should  have  been  shorter  rather  than  longer.  It  meant 
exactly  what  it  said.  Should  it  have  been  adopted  ?  And 
was  it  adopted  ?  No.  It  was  rejected.  It  would  not  do  to 
leave  a  blank.  And  what  stands  in  its  place  ?  "  No  compen- 
sation shall  be  allowed  for  attendance  of  members,  at  any  one 
session,  for  a  longer  time  than  one  hundred  days." 

This,' at  first  view,  looks  like  a  limitation  of  the  time  during 
which  the  Legislature  may  sit.  But  a  slight  examination  will 
show  that  it  is  delusive  and  wholly  inefficient  as  a  restraint, 
and  opens  a  door  for  worse  evils  than  protracted  sessions. 
After  the  expiration  of  the  hundred  days,  when  members  of 
small  means,  and  especially  those  from  the  country,  shall  have 
returned  to  their  homes,  a  few  men  of  wealth,  who  are  indiffer- 
ent about  their  pay,  and  men  who  have  special  purposes  to 
serve,  might  continue  the  session  till  they  had  accomplished 
the  objects  of  their  ambition  or  their  self-interest. 

But  this  limitation  is  confined  to  one  session ;  and  not  the 
slightest  obstacle  is  thrown  in  the  way  of  a  repetition  of  the 
sessions,  and  the  duplication  of  the  hundred  days,  to  the  end 
of  the  year.  And  the  delegates  who  proposed  and  sustained 
this  limitation,  and  rejected  the  former  one,  were  perfectly 
familiar  with  the  political  transactions  of  other  States,  and 
knew  full  well  that  the  Legislature  of  New  York,  from  whose 
constitution  this  provision  was  copied,  were,  at  the  very  time 
when  this  was  proposed,  discussed,  and  adopted,  holding  an 
extra  session,  and  drawing  their  daily  pay  on  the  second  hun- 
dred days,  as  legally  and  cosily  as  if  their  constitution  did 
not  contain  a  word  purporting  to  limit  their  sittings.  The 
proposed  limitation  is  therefore  inefficient  in  practice,  as  well 
as  deleterious  in  principle.  It  is  also  delusive,  calculated  to 
mislead  the  people,  and  to  induce  them  to  support  the  new 
Constitution,  in  the  hope  and  belief  that  they  w^ill  get  a  reduc- 
tion of  the  legislative  sessions,  when  in  fact  what  they  deem 
to  be  a  limitation  is  both  ineffectual  and  dangerous. 


STATE  DEBTS  AND  LOANS.  201 

Another  subject,  which  had  long  been  a  source  of  deep  in- 
terest and  anxiety  to  the  people  in  most,  if  not  all,  parts  of  the 
Commonwealth,  was  the  limitation  of  the  power  of  the  Leg- 
islature to  involve  the  State  in  debt,  and  especially  to  loan  the 
credit  of  the  State  to  private  individuals  and  corporations. 
The  call  for  this  limitation  had  been  long  and  loud  and  in- 
cessant. This  had  ever  been  a  cardinal  doctrine  of  the  Demo- 
cratic party.  It  had  been  the  rallying-cry  in  their  stump 
speeches  and  electioneering  addresses.  Most  of  the  leading 
members  of  the  majority  in  the  Convention  had  again  and 
again  resorted  to  it,  and  upon  it  laid  the  corner-stone  of  their 
electioneering  arguments.  Did  they  rely  upon  it  as  a  sound 
principle,  or  did  they  resort  to  it  as  a  mere  electioneering 
catch-word?  If  the  former,  how  could  they  vote  against  its 
adoption  now  they  had  the  power  ?  I,  for  one,  cannot  admit 
that  I  used  it  before  the  people  as  a  mere  artifice  to  delude 
them,  and  surreptitiously  obtain  their  votes.  I  then  believed, 
and  still  believe,  that  the  doctrine  is  sound  and  important.  If 
there  is  any  one  thing  which  the  people  should  tenaciously 
hold  on  to,  it  is  their  own  purse-strings.  If  there  is  any 
one  power  which  they  should  cautiously  and  sparingly  grant, 
it  is  the  power  to  involve  them  in  debt,  and  to  sell  or  give 
away  their  pecuniary  responsibility.  The  people's  money 
and  the  people's  credit  are  more  safe  in  their  own  hands,  than 
in  the  hands  of  any  agents  they  can  appoint. 

If  there  is  any  one  governmental  power  more  dangerous  and 
more  liable  to  abuse  than  any  other,  it  is  the  power  of  incur- 
ring State  debts  and  loaning  State  credit.  It  exposes  the 
members  of  the  Legislature  to  all  manner  of  influences  and 
temptations.  They  are  beset  by  lobby  members.  They  are 
tempted  by  gastronomical  appliances.  They  are  courted  by 
excursions  into  the  country ;  and  then  some  improvement  of 
great  public  good  is  to  be  accomplished,  and  to  be  done  with- 
out the  possibility  of  injury  to  the  State.  And  all  that  is 
asked  is  the  use  of  a  little  credit, — just  the  signature  of  the 
Governor,  or  some  other  officer.  How  can  such  influences  be 
resisted  ?  It  would  require  more  than  Roman  firmness  to 
withstand  them.  The  only  safety  to  the  Legislature  and  to 
the  community  is  to  retain  the  power  in  the  hands  of  the 
people. 


202  LOANING     STATE    CREDIT. 

The  dangerous  nature  of  this  power  will  be  seen  by  refer- 
ring to  the  use  of  it  in  all  our  States,  and  the  abuse  of  it  in 
most  of  them.  The  debts  and  liabilities  of  all  the  States  of 
this  Union  amount  in  the  aggregate  to  more  than  three  hun- 
dred millions  of  dollars.  And  some  of  the  richest  States  in 
our  confederacy  have,  by  the  too  prodigal  use  of  this  power, 
brought  themselves  to  the  brink  of  bankruptcy.  Look  at  the 
great  State  of  Pennsylvania,  unequalled  in  mineral  wealth, 
and  scarcely  surpassed  in  other  natural  advantages,  with  a 
debt  of  forty  millions,  the  very  interest  of  which  at  times  she 
has  been  unable  to  pay,  and  of  course  her  credit  has  been 
impaired  and  her  fair  fame  tarnished.  Look  at  the  young 
and  vigorous  State  of  Illinois,  unequalled  in  the  depth  and 
richness  of  her  soil,  and  scarcely  surpassed  in  the  quantity  of 
it,  so  deeply  involved  in  debt  that  she  has  not  been  able  to 
pay  up  the  interest,  and  has  had  her  growth  and  progress 
greatly  retarded.  It  is  hardly  necessary  for  me  to  refer  to 
another  great  State,  which  has  been  driven  into  the  disgrace 
of  repudiation. 

So  alarming  and  all-pervading  had  the  danger  of  this  power 
become,  that  nearly  or  quite  every  State  which  has  recently 
made  or  amended  its  constitution,  has  introduced  some  effi- 
cient restriction  upon  it.  Clauses  of  this  kind  may  be  found 
in  no  less  than  nineteen  of  the  State  Constitutions.  I  sup- 
posed that  similar  limitations  would  be  adopted  here  by  ac- 
clamation. But  in  this,  as  in  many  other  things,  I  found  my- 
self mistaken. 

Several  propositions  were  introduced,  some  of  which  were 
at  first  sustained  by  a  majority.  Among  others,  I  offered  two 
propositions.  One  was,  that  the  Legislature  should  not  have 
the  power  to  loan  the  credit  of  the  State,  without  submitting 
the  matter  to  the  people,  and  obtaining  their  assent.  The 
other  was,  that  the  Legislature  should  not  have  power  to  run 
the  State  in  debt,  beyond  one  million  of  dollars,  except  to 
repel  invasion  or  suppress  insurrection.  But  these  proposi- 
tions were  rejected  by  the  usual  voices  and  usual  majority. 
And  why  was  this  done  ? 

A^  certain  most  interesting  portion  of  the  State  was  cut 
off  from    convenient   intercourse   with    New    York  and    the 


HOOSAC    TUNNEL.  203 

Western  States,  by  an  impassable  mountain  of  rock.  And 
the  persevering  inhabitants  of  this  region  and  their  indom- 
itable representatives  were  determined  that,  as  they  could 
not  go  over  this  mountain,  they  would  go  through  it.  And 
in  order  to  make  a  hole  through  which  they  could  travel, 
they  thought  it  necessary  to  obtain  from  the  State  a  few 
millions  of  money,  or  of  State  credit,  which  could  be  con- 
verted into  money.  Now,  as  this  amendment  would  stand, 
as  impassable  as  the  Hoosac  Mountain,  between  them  and 
the  State  Treasury,  they  not  only  declared  hostility  to  the 
amendment,  but  avowed  a  determination,  the  execution  of 
which  could  not  be  doubted,  that,  if  this  motion  prevailed, 
they  would  oppose  and  defeat  the  whole  Constitution.  It  is 
therefore  apparent,  that  a  local  object  defeated  an  important 
general  constitutional  provision,  which,  without  such  local 
object,  would  have  met  with  almost  universal  approbation. 

Now  it  is.  not  within  my  present  purpose  to  discuss  the 
Hoosac  Tunnel  question,  or  to  inquire  whether  it  is  wise  or 
practicable  to  bore  a  hole  some  fifteen  or  twenty  feet  square 
through  a  solid  rock,  —  the  length  of  over  four  miles.  I  am 
sure  I  wish  them  success,  in  all  their  laudable  efforts.  So  I 
do  to  the  county  of  Barnstable.  And  could  her  sands  be 
covered  with  clay,  and  a  little  sprinkling  of  manure,  I  have 
no  doubt  it  would  increase  their  productiveness,  and  thus  add 
to  the  common  stock.  But  much  as  I  love  Cape  Cod,  the 
birthplace  of  my  ancestors,  and  much  as  I  admire  the  beau- 
tiful hills  and  fertile  valleys  and  romantic  scenery  of  Franklin, 
I  should  not  be  willing  to  give  either  of  them  access  to  the 
public  treasury  to  enable  them  to  accomplish  any  enterprise, 
however  desirable.  Equal  justice  to  the  whole  Common- 
wealth forbids  it.  And  I  must  protest  against  the  introduc- 
tion of  local  interests  to  control  or  influence  our  action  on 
grave  constitutional  questions.  I  cannot  disguise  my  ap- 
prehension, that  this  Hoosac  Tunnel  enterprise  had  too 
much  to  do  with  several  subjects  which  were  before  the  Con- 
vention. Without  a  little  aid  from  this  source,  how  can  we 
account  for  the  most  extraordinary  excess  of  representation 
which  has  been  apportioned  to  the  vicinity  of  this  gigantic 
enterprise  ? 


204 


PLURALITY    PRINCIPLE. 


There  is  one  more  important  reform  which  was  demanded 
by  the  people,  that  has  been  wholly  neglected.  I  speak  of 
what  the  committee  before  referred  to  call  "  the  present 
cumbersome,  formal  mode  of  organizing  the  government." 
They  say,  "  Eight  or  ten  days  are  now  usually  occupied  in  this 
organization,  which  is  nothing  less  than  an  annual  waste  of 
six  or  eight  thousand  dollars  of  the  people's  money.  The  elec- 
tion of  Secretary  of  the  Commonwealth,  Treasurer,  Receiver- 
General,  Auditor  of  Accounts,  and  Executive  Councillors  by 
the  people,  with  an  application  of  the  plurality  principle  to 
these  officers,  as  well  as  to  the  Governor,  Lieutenant-Gover- 
nor, and  State  Senators,  would  do  much  to  remedy  this  evil." 
"  This  change  alone  would  in  the  course  of  ten  years  nearly 
or  quite  defray  the  whole  expense  of  the  Convention." 

This  committee  further  say,  "  We  recommend  the  adop- 
tion of  the  plurality  system  in  more  of  our  elections.  The  time 
and  money  which  is  now  expended,  and  the  party  animosity 
which  is  engendered  by  the  numerous  and  unsuccessful  at- 
tempts to  elect  the  various  state,  county,  and  town  or  city 
officers,  have  become  grounds  of  repeated  and  loud  complaints 
in  all  portions  of  the  Commonwealth."  "  We  are  aware," 
they  say,  "  that  the  majority  principle  has  long  been  consid- 
ered the  conservative  element  of  our  Constitution  ;  and  many 
sound  and  well-balanced  minds  may  take  alarm  at  a  propo- 
sition of  this  kind ;  but  we  think  that  a  moment's  reflection 
will  satisfy  the  most  fastidious,  that  their  fears  are  groundless. 
The  practical  operation  of  our  Constitution  for  the  last  ten 
years  has  been,  in  very  many  instances,  to  place  in  the  most 
important  offices  in  the  State  men  who  have  received,  not  a 
majority^  but  only  a  plurality,  of  the  popular  vote.  Indeed, 
this  result  seems  to  be  fast  becoming  the  general  rule,  and  not 
the  exception.  And  in  some  instances  these  offices  have  been 
filled  by  men  who  have  received  not  even  a  plurality  of  the 
popular  vote." 

This  proposition  was  not  only  recommended  by  the  com- 
mittee and  by  the  Legislature,  but  everywhere  demanded  and 
expected  by  the  people.  It  was  to  remedy  an  existing  crying 
grievance.  The  expense  and  delay  in  the  organization  of  the 
government  were  the  least  of  the  evils  resulting  from  this  anom- 


POLITICAL    BARGAINING.  205 

alous  and  cumbersome  mode  of  proceeding.  It  presents 
strong  temptations  to  office-seeking  politicians  and  intriguing 
hacks  to  form  cliques  and  collateral  factions.  It  not  only  fur- 
nishes the  opportunity,  but  presents^strong  inducements,  for 
trading  in  offices,  or,  in  the  language  of  a  distinguished  mem- 
ber of  the  Convention,  for  swapping^  and  promotes  dishon- 
est management  and  official  corruption.  It  also  strongly  and 
directly  tends  to  subvert  and  nullify  a  prominent  principle 
of  our  government.  Instead  of  upholding  the  doctrine  that  a 
majority  shall  govern,  it  very  generally  favors  the  election  of 
those  who  have  neither  a  majority  nor  a  plurality,  but  a  very 
inconsiderable  minority.  This  has  frequently  occurred  in  the 
administration  of  our  own  government.  The  voice  of  the 
people  has  very  often  been  disregarded,  to  give  place  to  party 
arrangement  or  political  bargaining. 

Under  these  circumstances,  who  could  doubt  that  a  mode 
of  making  officers  so  very  objectionable  in  principle,  and  so 
pernicious  in  practice,  would  at  once,  and  by  a  unanimous 
vote,  be  abolished,  and  the  plurality  principle  substituted  for  it, 
—  a  principle  which,  if  it  failed  to  command  a  majority,  would 
require  at  least  the  greatest  number  of  votes,  and  prevent  the 
withdrawal  of  the  election  altogether  from  the  people  ?  But 
to  the  surprise  and  astonishment  of  all,  this  salutary  principle, 
which  prevails  in  almost  all  democratic  States,  was  rejected. 
And  what  added  to  the  surprise  and  astonishment  was  the 
recollection,  that  it  had  been  so  strongly  recommended  by  a 
committee,  many  of  the  members  of  which  were  the  leading 
members  of  the  Convention ;  that  the  recommendation  had 
been  adopted  by  a  Legislature  the  members  of  which  consti- 
tuted a  large  portion  of  the  Convention ;  and  that  this  rec- 
ommendation was  one  of  the  principal  causes  for  calling  the 
Convention. 

But  the  efficient  spring  of  action  of  which  we  had  before 
seen  an  inkling,  and  which  was  to  give  tone  and  character  to 
the  proceedings  of  the  Convention,  now  pretty  fully  disclosed 
itself.  The  Free  Soil  party,  though  not  the  most  numerous, 
from  its  talents,  its  industry,  and  its  ambition,  manifestly 
exerted  a  controlling  influence  in  the  Convention,  and  the  per- 
petuation and  augmentation  of  that  party  clearly  showed  itself 
19 


206  FREE    SOIL    PARTY. 

as  a  leading  object  of  the  Convention.  Whatever  retarded 
or  endangered  the  welfare  or  growth  of  that  party,  however 
much  desired  by  the  people  of  the  Commonwealth,  could  not 
be  expected  to  prevail.  When,  therefore,  it  was  announced 
that  the  plurality  system  would  be  unfavorable  to  that  party, 
its  fate  was  sealed.  It  was  said  by  some,  that  the  three  lead- 
ing objects  of  the  Convention  were  to  build  up  the  Liberty 
party,  to  make  its  chief  man  Governor,  and  to  bore  the  Hoosac 
Tunnel.  I  will  not  vouch  for  the  correctness  of  this  state- 
ment. But  I  feel  bound  to  state  my  conviction,  that,  had 
these  been  the  leading  objects  of  the  Convention,  it  would 
have  pursued  very  nearly,  if  not  precisely,  the  course  which  it 
did  pursue. 

To  show  that  I  did  not  misunderstand  the  cause  and  spring 
of  action  in  the  Convention,  and  have  done  no  injustice  to  the 
Free  Soil  or  Liberty  party,  I  beg  leave  to  trouble  you  with  a 
single  quotation  on  this  point.  When  the  question  on  the 
adoption  of  the  plurality  rule  was  taken,  the  vote  stood  159 
in  the  affirmative  and  159  in  the  negative.  The  President 
voted  in  the  negative,  and  thus  the  question  was  lost.  A 
leading  Free-Soiler,  whose  talents  and  frankness  no  one  will 
question,  upon  the  annunciation,  immediately  rose,  and  with- 
out stopping  to  inquire  whether  there  was  any  question  be- 
fore the  Convention,  declared  his  surprise  at  the  vote  just 
taken,  and  said,  "  While  I  am  filled  with  surprise,  I  must 
also  be  allowed  to  express  my  gratification  at  the  fact  that 
this  Convention  has  been  saved  from  lasting  disgrace  by  the 
casting  vote  of  the  chairman ;  for  had  we  lost  this  question, 
what  should  we  not  have  lost  ?  Every  tiling.  The  Liberty 
party  in  the  Convention  would  have  been  defeated  in  all  the 
most  important  matters."  "  Sir,  had  that  amendment  suc- 
ceeded, I  would  have  prayed  Heaven,  that  the  people  might 
have  hissed  the  whole  amended  Constitution  into  oblivion." 
Indeed!  was  the  "Liberty  party"  "every  thing"?  And 
would  the  people,  if  that  party  had  been  discomfited,  have 
been  bound  to  bury  "  in  oblivion  "  the  whole  proceedings  of 
the  Convention  ?  Was  that  body  called  to  act  for  the 
special  benefit  of  the  Liberty  party,  or  any  other  party,  or  rather 
were  they  not  bound  to  look  at  the  interest  and  welfare  of  the 


SINS    OF    OMISSION.  207 

whole  Commonwealth,  without  regard  to  its  effect  upon  any 
party  organization?  And  if  the  people  were  to  '^ hiss"  their 
disapprobation  of  any  thing,  should  it  not  have  been  at  that 
course  which  was  a  disregard  of  pledges  given,  and  of  the 
known  will  of  the  whole  people  ? 

I  have  now  commented  upon  the  principal  sins  of  omis- 
sion of  which  the  Convention  was  guilty.  I  have  men- 
tioned the  principal  demands  of  the  people  in  calling  the 
Convention,  and  the  main  purposes  for  which  it  was  called. 
They  were,  — 

1.  A  reduction  of  State  expenditures. 

2.  The  limitation  of  the  length  of  the  sessions  of  the  Legis- 
lature. 

3.  The  abolition  of  the  Executive  Council. 

4.  The  limitation  of  the  power  of  the  Legislature  to  incur 
State  debts,  and  to  loan  the  credit  of  the  State. 

5.  The  reduction  of  the  number  of  the  House  of  Repre- 
sentatives. 

6.  The  equalization  of  the  representation. 

7.  The  adoption  of  the  plurality  rule  in  every  election. 

All  these  were  demanded  by  the  people.  All  these  were 
among  the  principal  purposes  for  which  the  Convention  was 
called,  and  without  which  it  would  not  have  been  holden. 
All  these  were  well  known  to  the  members  of  the  Conven- 
tion. And  to  many  of  them  the  members  were  expressly, 
and  to  all  of  them  impliedly,  committed.  All  these  demands 
have  been  slighted,  or  utterly  disregarded.  This  was  a  violation 
of  delegated  trust,  —  a  breach  of  representative  duty,  —  a  con- 
tempt of  the  will  and  power  of  the  people ;  and  so  far  as  these 
matters  were  used  to  induce  a  call  of  the  Convention,  that 
other  amendments  might  be  procured,  it  was  very  like  obtain- 
ing goods  by  false  pretences.  In  this  view  of  the  subject,  is  it 
not  due  from  the  people  to  themselves  and  their  posterity,  to 
put  the  stigma  of  their  marked  condemnation  and  reproba- 
tion upon  the  whole  proceedings  ? 

I  should  now  be  pleased  to  enter  upon  the  second  branch 
of  my  subject,  and  to  consider  what  the  Convention  has  done. 
But  I  find  myself,  in  the  infirm  state  of  my  health,  so  much 


208 


GOOD    ALTERATIONS. 


exhausted,  that  it  will  be  impossible  for  me  to  continue  my 
remarks. 


The  meeting   then   adjourned  to  Monday   evening,  November  7, 
when  Governor  Morton  resumed  his  argument. 


Fellow  Citizens,  —  Among  the  several  amendments  of 
the  Constitution  proposed  by  the  Convention,  there  are  some 
which  meet  my  approbation,  and  which,  I  presume,  meet 
yours,  for  which  we  should  have  been  pleased  to  vote  had  the 
Convention  allowed  us  to  exercise  our  judgments  as  free  citi- 
zens. Of  these  I  shall  say  very  little,  because  they  have  been 
discussed  and  presented  to  the  public  in  the  most  favorable 
aspect  by  the  numerous  able  orators  who  hav&  advocated  the 
adoption  of  the  whole  Constitution  as  proposed  ;  and  because 
I  have  neither  time  nor  strength  to  discuss  all  the  amend- 
ments. It  will  be  found,  that  almost  all  the  most  important 
subjects  for  which  the  Convention  was  called  have  been 
either  neglected,  or  so  unwisely  treated  as  to  furnish  unanswer- 
able reasons  for  the  rejection  of  the  whole.  Those  amend- 
ments which  are  judicious  and  wise  are  comparatively  of 
minor  importance,  and  many  of  them  capable  of  being  pro- 
vided for  by  ordinary  legislation.  They  therefore  will  not 
justify  any  gi*eat  sacrifice,  —  certainly  no  violation  of  princi- 
ple, to  secure  their  adoption. 

Among  the  proposed  amendments,  the  one  in  relation  to 
the  election  of  Senators  is  worthy  of  approbation.  The 
choice  of  legislators  or  other  officers  by  single  districts  is  un- 
doubtedly, in  itself,  the  best  mode  of  election.  The  present 
mode  of  electing  Senators  is  not  very  objectionable.  It  has 
some  advantages  over  the  proposed  system.  It  is  more  near- 
ly equal.  The  fractions  in  forty  districts  will  necessarily  be 
greater  in  the  aggregate  than  in  thirteen.  The  formation  of 
the  forty  districts  will  be  subject  to  political  intrigue  and 
management,  and  to  the  process  of  "  Gerrymandering,"  to 
which  the  present  districts,  being  permanent,  are  not  liable. 
Still,  I  give  a  decided  preference  to  the  single  districts,  and  re- 


PRINCIPLE    AND    EXPEDIENCY.  209 

gret  that  I  have  been  deprived  of  the  pleasure  of  giving  my 
vote  in  favor  of  their  adoption. 

The  secret  ballot  is  an  old  favorite  with  me.  I  recommended 
it  in  an  official  message  many  years  ago.  And  I  can  see  no 
good  reason  for  limiting  the  application  of  a  sound  general 
principle.  Why  confine  it  to  national,  state,  county,  district, 
and  city  elections  ?  Why  not  include  towns  ?  Is  not  the 
secret  ballot  as  much  needed  in  Fall  River  or  Taunton,  as  in 
New  Bedford  or  Springfield?  I  should  be  glad  to  see  it 
established  in  the  Constitution,  even  in  its  present  form,  if  I 
could  do  no  better.  But  it  is  a  consolation  that,  should  it  be 
rejected,  it  may  still,  if  the  people  desire  it,  be  provided  for  by 
law. 

The  same  remarks  apply  to  the  tax  qualification  of  voters. 
Every  man  contributes  to  the  public  treasury  in  what  he  eats 
or  wears,  and  many  men  in  some  things  that  they  drink.  I 
would  let  every  resident  citizen  vote,  not  because  he  pays 
taxes,  but  because  he  is  a  man.  If  this  be  a  sound  principle, 
as  in  the  last  case,  why  limit  its  operation  to  national  and 
state  officers  ?  Why  allow  a  man  to  vote  for  a  president 
or  a  governor,  that  you  will  not  trust  to  vote  for  a  field-driver 
or  a  hog-reeve  ? 

A  capital  error  seemed  to  pervade  the  deliberations  of  the 
Convention.  Expediency  rather  than  principle,  as  in  the  two 
cases  just  mentioned,  seemed  to  be  the  governing  rule  of  ac- 
tion. This,  if  too  much  relied  upon,  always  misleads.  This 
will  lead  the  wisest  and  most  sagacious  man,  though  always 
on  his  guard,  into  inconsistencies  and  absurdities.  But  prin- 
ciple, like  truth,  never  misleads.  Truth  is  always  the  same, 
and  always  consistent.  No  one  truth,  from  the  foundation  of 
the  world  to  the  present  day,  was  ever  inconsistent  with  any 
other  truth.  So  principles  are  always  the  same,  and  never 
clash  with  each  other.  The  man  who  invariably  follows 
these  cardinal  virtues,  though  simple  and  ignorant  as  a  child, 
and  always  unguarded,  never  need  to  fear  that  he  will  be  led 
astray,  or  will  fall  into  inconsistencies  and  contradictions. 

But  there  are  many  other  amendments,  such  as  the  election 
by  the  people  of  several    officers   who   now  hold  office  by 
executive  appointment ;  the  limitation  of  the  tenure  of  judi- 
19* 


210  .  GOOD    AND    BAD. 

cial  office,  and  some  qualification  of  judicial  power;  the  modi- 
fication of  the  mode  of  electing  the  Governor  by  the  Legisla- 
ture ;  the  limited  application  of  the  plurality  ;  the  mode  of  call- 
ing future  conventions;  the  enlargement  of  the  school  fund  ; 
the  regulation  of  the  militia  ;  the  election  of  Councillors  by  the 
people;  the  viva  voce  vote  in  the  Legislature ;  the  abolition  of 
the  power  of  the  Legislature  to  grant  bank  charters ;  the  lim- 
itation of  their  power  to  create  corporations ;  the  prohibition 
of  the  application  of  school  money  to  sectarian  schools ;  the 
grant  of  judicial  remedies  to  persons  having  claims  against 
the  State;  the  abolition  of  imprisonment  for  debt;  the  reg- 
ulation of  the  writ  of  habeas  corpvs ;  the  recognition  of  the 
right  of  the  jury,  in  criminal  cases,  to  judge  of  the  law  as  well 
as  of  the  fact;  and  probably  some  unimportant  provisions 
which  have  for  the  moment  escaped  my  recollection. 

Some  of  these  amendments  are  sound  and  just,  and  might 
very  well  become  a  part  of  our  Constitution,  while  others  are 
objectionable  and  of  dangerous  tendency,  and  ought  to  be 
rejected.  But  I  do  not  deem  them  of  sufficient  importance 
to  justify  me  in  pretermitting  other  great  topics  to  discuss 
them.  The  two  last-named  propositions  relate  to  important 
subjects.  But  I  believe  they  were  introduced  by  two  distin- 
guished lawyers,  as  a  kind  of  relief  for  some  private  griefs 
under  which  they  were  suffering.  And  as,  in  my  opinion, 
they  impair  and  weaken  the  great  principles  which  their  au- 
thors wished  to  establish  and  fortify,  I  can  but  hope  they  will 
be  rejected. 

I  have,  fellow-citizens,  hastened  over  these  amendments, 
not  unimportant  in  themselves,  and  upon  some  of  which  I 
should  have  been  glad  to  express  my  views,  that  I  might  have 
time  to  examine  pretty  fully  the  great  subject  which  over- 
shadows all  the  others;  and  in  comparison  with  which  all 
the  other  amendments  dwindle  into  insignificance.  All  of 
you  understand  that  1  refer  to  the  basis  of  representation. 
This  lies  at  the  foundation  of  government,  and  stamps  upon 
it  the  character  of  freedom  or  tyranny.  If  this  be  right,  we 
may  overlook  a  thousand  other  errors,  because  this  may,  to  a 
great  extent,  correct  or  remedy  them.  But  if  this  be  wrong, 
the  vice  is  incurable,  and,  however  wise  all  the  other  amend- 
ments may  be,  this  will  pervade  and  condemn  the  whole. 


PRINCIPLE    OF    REPRESENTATION.  211 

The  power  of  making  rules  or  laws  for  the  regulation  of 
the  people  of  the  community  is  in  all  governments  the  great 
and  controlling  power.  In  some  countries  enjoying  a  pretty 
large  portion  of  freedom,  it  is  called  omnipotent.  As  it  is 
exercised  wisely  or  unwisely,  will  the  government  exert  a  sal- 
utary or  deleterious  influence  upon  its  subjects. 

In  the  original  institution  of  government  and  the  establish- 
ment of  a  civil  community,  the  first  step  is  to  determine  who 
shall  have  a  voice  in  the  formation  and  administration  of  the 
government,  and  the  second  is  to  determine  how  that  voice 
shall  be  manifested  so  as  to  have  its  just  and  proper  effect. 
In  a  community  composed  of  a  small  number,  each  member 
partakes  in  the  management  of  the  common  affairs,  and  of 
course  each  one  has  a  voice  exactly  equal  to  every  other  one. 
This  is  a  pure  and  direct  democracy.  But  when  the  number 
becomes  so  large  that  they  cannot  all  assemble  together 
for  the  transaction  of  the  public  business,  some  other  mode 
of  expressing  and  ascertaining  the  voice  of  the  whole  must 
be  adopted.  This  can  only  be  done  through  agencies  or 
proxies.  And  these,  to  express  their  true  characters,  are 
called  representatives.  And  a  hundred  representatives,  each 
one  representing  ten  thousand,  may  as  truly  express  the  voice 
of  a  million,  as  if  each  one  of  the  million  were  present  and 
declared  his  voice  in  person.  This  notion  of  action  by  proxy 
was  so  strongly  fixed  in  the  minds  of  the  people,  that  in  our 
democratic  neighbor,  little  Rhode  Island,  the  votes  for  State 
officers  are,  to  the  present  day,  called  proxes,  and  are  sent  up 
to  the  capital  to  be  counted,  instead  of  the  elector's  going  him- 
self to  give  in  his  vote.  By  the  adoption  of  the  system  of  rep- 
resentation, no  one  parts  with  any  of  his  natural  rights.  This 
plan  of  representation  is  the  most  valuable  invention  in  civil 
government.  It  was  never  understood  by  the  ancients.  But 
it  is  now  a  familiar  doctrine,  and  indispensable  in  a  free  gov- 
ernment. 

It  is  based  on  the  perfect  equality  of  man.  The  doctrine 
of  equality,  whether  in  direct  action  or  representative  agency, 
is  the  fundamental  doctrine  of  democracy.  It  is  founded  in 
justice  and  natural  right.  It  is  sustained  by  the  fiat  of  the 
Almighty,  and  recognized  and  established   in    his   revealed 


212  EQUALITY    OF    RIGHTS. 

word.  The  commandments,  "  Thou  shalt  love  thy  neighbor 
as  thyself,"  and  "  Do  unto  others  as  ye  would  that  they  should 
do  unto  you,"  are  the  foundations  of  democracy,  and  every 
man  who  fully  believes  and  always  practises  these  precepts, 
in  their  full  extent  and  bearing,  must  be  a  good  democrat. 

I  start,  then,  with  the  sacred  principle,  that,  by  nature  and 
the  will  of  God,  every  man  is  born  a  freeman,  and  enters  into 
society  with  equal  rights  with  every  other  man.  This,  I  be- 
lieve every  one  who  makes  any  pretensions  to  democratic 
principles  will  admit,  is  an  indisputable  political  axiom.  It 
was  so  considered  by  the  fathers  of  the  Revolution  and  the 
authors  of  our  Constitutions,  both  national  and  state  ;  and 
it  is  so  recognized  and  established  in  the  Declaration  of  Inde- 
pendence and  in  numerous  state  Bills  of  Rights.  On  this 
axiom  rests  the  doctrine  of  equal  representation,  as  it  is  an 
inevitable  corollary  from  it.  Indeed,  the  amendment  in  ques- 
tion acknowledges  it,  as  it  commences  by  declaring  that,  "in 
order  to  provide  for  a  representation  of  the  citizens  of  this 
Commonwealth  founded  upon  the  principles  of  equality," 
the  representatives  shall  be  appointed  in  the  way  therein 
specified. 

Now  let  us  examine  the  proposed  amendment,  and  test  its 
provisions  by  these  principles.  If  it  comes  up  to,  and  fully 
meets  them,  it  may  be  set  down  as  sound  and  wise,  and  wor- 
thy of  the  acceptance  of  the  people ;  but  if  it  essentially  and 
materially  falls  short  or  deviates  from  them,  it  should  be  con- 
demned and  rejected.  Principles  so  important  and  sacred 
cannot  be  violated  with  impunity. 

It  is  said  that  in  practice  we  cannot  attain  perfect  equality. 
This  is  true.  Nothing  is  perfect  in  this  world.  But  if  we 
cannot  reach  mathematical  equality,  is  that  any  reason  why 
we  should  not  approximate  as  nearly  to  it  as  we  can  ?  Shall 
we  adopt  a  system  of  substantial,  practical  equality,  or  shall 
we  abandon  the  democratic  rule,  and  resort  to  aristocratic  prin- 
ciples, or  adopt  an  arbitrary  rule,  unsupported  by  any  principle  ? 

I  presume  you  all  well  know  the  provisions  of  the  amend- 
ment under  consideration.  It  gives  to  each  town  having  less 
than  one  thousand  inhabitants  one  representative  six  years  in 
ten ;  to  each  town  having  from  one  to  four  thousand  inhab- 


ABSURD    INEQUALITY.  213 

itants  one  representative  every  year ;  and  to  larger  towns,  one 
additional  representative  for  every  additional  four  thousand 
inhabitants.  This  gives,  in  the  whole,  430  representatives. 
A  recurrence  to  the  last  census  will  show  that  there  are  64 
towns  entitled  to  one  representative  six  tenths  of  the  time, 
and  212  towns  entitled  to  one  representative  every  year,  and 
all  the  other  towns  and  cities  are  entitled  to  more  than  one 
representative  each  year. 

The  first  objection  to  this  system  is  the  absurdity  of  dis- 
franchising the  inhabitants  of  the  small  towns  a  part  of  the 
time,  and  compensating  them  for  this  wrong  by  allowing 
them  an  over-representation  the  rest  of  the  time.  This 
scheme,  in  doing  injustice  to  the  small  towns  a  part  of  the 
time,  does  an  injury  to  the  larger  ones  all  the  time. 

Another  objection  to  this  scheme  is,  that  it  violates  the 
principle  of  equality,  in  this  class  of  towns,  by  giving  each 
of  them  the  same  representation,  without  any  regard  to  their 
population.  The  994  citizens  of  Boxford  have  just  the  same 
representative  weight  that  the  210  citizens  of  New  Ashford 
or  the  242  citizens  of  Monroe  have.  Thus  one  man  in  either 
of  the  latter  towns  has  more  power  in  the  House  of  Repre- 
sentatives than  four  men  in  the  former  town.  And  the  in- 
equality, in  a  greater  or  less  degree,  runs  through  the  whole  of 
this  class  of  towns.  Is  this  a  just  and  righteous  distribution 
of  power  ?     And  will  you  give  it  your  approbation  ? 

Again,  the  same  inequality  runs  through  the  second  class 
of  towns.  We  find  one  town,  Hingham,  with  3,962  inhabit- 
ants, having  one  representative,  and  another  town,  Chester- 
field, with  1,009  inhabitants  having  the  same.  Is  this  repre- 
sentation "  founded  upon  the  principles  of  equality  "  ? 

But,  fellow-citizens,  there  are  several  other  views  of  this 
subject  which  will  present  it  in  a  more  striking  light.  And  I 
now  bespeak  your  largest  patience  and  forbearance,  for  I  am 
determined,  at  the  risk  of  being  tedious,  to  follow  out  this  pro- 
vision in  most  of  its  details,  and  to  show  its  unrighteous, 
arbitrary,  and  anti-democratic  character. 

I  will,  in  the  first  place,  make  a  comparison  between  several 
different  towns,  to  show  the  inequality  between  them.  This 
will  be  the  best  test  of  the  fairness  and  justice  of  the  scheme. 


214  INEQUALITY,    INJUSTICE. 

For  every  representative  ought  to  represent  as  near  as  prac- 
ticable the  same  number  of  people.  And  every  representa- 
tive district  should  have  a  representative  power  as  near  as 
practicable  according  to  its  population.  I  will  now  refer  you 
to  the  population  of  several  towns,  with  their  representation, 
and  show  you  how  utterly  this  justice  is  disregarded  and  set 
at  naught. 

In  the  comparison  which  I  am  about  to  institute,  I  intend 
to  take  strong  cases,  because  that  will  best  test  the  principle. 
And  I  shall  not  notice  the  fractional  representation  of  the 
small  towns,  because,  until  a  new  census  be  taken,  they 
will  be  entitled  to  annual  representation,  and  because,  when  a 
new  census  shall  be  taken,  it  will  show  almost  all  the  increase 
in  the  large  corporations,  which  will  make  the  inequality 
greater  then  than  it  is  now,  allowing  the  annual  representation 
of  the  small  towns. 

I  will  commence  by  comparing  some  of  the  towns  in  this 
vicinity  with  some  in  the  northwestern  part  of  the  State. 
Pawtucket  with  3,876  inhabitants  has  one  representative,  and 
New  Ashford  with  210  and  Monroe  with  242  each  has  one. 
Thus  a  citizen  of  New  Ashford  has  in  the  House  of  Repre- 
sentatives as  much  power  as  18  citizens  of  Pawtucket,  and 
a  citizen  of  Monroe  has  as  much  as  16  citizens  of  Pawtucket. 
Follow  the  comparison  a  little  further.  There  are  ten  towns 
in  the  State  which  have  a  population  of  3,685  souls,  and  are 
entitled  to  10  representatives,  while  Pawtucket  with  its  popu- 
lation of  3,876  has  but  one.     Is  this  equality  or  justice  ? 

There  are  other  towns  of  this  class,  for  instance,  Hingham, 
North  Bridgewater,  Rochester,  &c.,  where  the  disproportion 
is  even  greater  than  in  Pawtucket,  and  in  all  of  the  212 
towns  the  inequality  is  gross,  as  between  themselves,  as  well 
as  between  them  and  the  smaller  towns.  But  time  will  not 
permit  a  reference  to  a  hundredth  part  of  them. 

Let  us  for  a  moment  look  at  the  larger  class  of  towns.  A 
man  in  Fall  River  has  one  eighteenth  part  of  the  political 
power  of  a  man  in  New  Ashford,  and  one  sixteenth  of  the 
power  of  a  man  in  Monroe.  The  population  of  Fall  River  is 
11,170,  and  is  entitled  to  three  representatives.  There  are 
twenty-three  towns  in  other  parts  of  the  State,  with  a  popula- 


ONE    SIXTEENTH    OF    A    MAN.  215 

tion  of  11,308,  which  are  entitled  to  twenty-three  representatives. 
So  a  citizen  of  New  Bedford  has  one  sixteenth  of  the  weight 
of  a  citizen  of  New  Ashford,  and  one  fourteenth  the  weight  of 
a  citizen  of  Monroe.  Thirty  towns,  with  a  population  of 
16,292  are  entitled  to  thirty  representatives,  while  New  Bed-- 
ford,  with  16,441  inhabitants,  has  only  Jive  representatives. 

Now  let  us  bring  this  matter  home  to  our  own  town,  and 
see  how  we  are  estimated  in  the  scale  of  political  rights. 
Following  the  same  comparison,  a  man  in  Taunton  has  one 
sixteenth  the  weight  of  a  man  in  New  Ashford,  and  one  four- 
teenth  the  weight  of  a  man  in  Monroe.  From  this  it  follows, 
either  that  each  of  us  is  only  one  sixteenth  or  one  fourteenth 
of  a  man,  or  that  every  inhabitant  of  either  of  these  favored 
towns  is  fourteen  or  sixteen  times  a  man.  Again,  Taunton 
has  a  population  of  10,145,  and  is  entitled  to  three  representa- 
tives, and  tvjenty-one  other  towns  with  10,015  inhabitants  are 
entitled  to  twenty-one  representatives. 

Fellow-townsmen,  can  you  approve  a  system  like  this  ?  Is 
any  one  of  you  willing  to  admit  that  he  is  but  one  sixteenth  or 
one  fourteenth  or  one  tenth  of  a  man  ?  Are  the  farmers,  the 
brickmakers,  the  mechanics,  the  machinists  of  Taunton,  so 
vastly  inferior  to  the  farmers  of  the  Green  Mountains,  or  of 
any  other  part  of  the  world  ?  What  is  there  in  any  other  part 
of  the  Constitution  deemed  so  valuable  by  you,  that  you  are 
willing  to  purchase  it  by  such  an  act  of  self-degradation  and 
political  debasement  ?  When  this  system  of  inequality  and 
unrighteousness  is  brought  home  to  ourselves,  it  is  difficult  to 
discuss  it  with  becoming  deliberation  and  calmness.  Let  me 
put  the  question  to  you.  Is  there  a  person  here,  a  person 
in  town,  craven  enough  to  acknowledge  himself  but  the  frac- 
tion of  a  man  by  voting  for  these  amendments  ? 

The  proper  test  of  the  fairness  of  a  representative  system  is 
the  comparison  of  one  election  district  with  others,  and  thus 
ascertaining  whether  all  are  treated  alike.  If  they  are,  the 
system  is  a  just  one  ;  if  not,  it  is  an  unjust  one.  We  have 
just  seen  how  the  proposed  system  bears  this  test, —  how 
utterly  it  is  condemned  by  it.  But  let  us  look  further,  and 
see  if  we  can  find  any  alleviation  of  this  pvil.  If,  for  in- 
stance, the  representatives  are  pretty  fairly  distributed  among 


216  COUNTIES,   SECTIONS,    INTERESTS. 

the  different  counties,  sections,  and  interests  of  the  State,  it 
will  be  some  mitigation  of  the  injustice  of  unequal  districts. 

How  is  the  distribution  between  the  several  counties  ? 
Norfolk,  with  a  population  of  77,441,  can  elect  thirty-one  rep- 
resentatives. Berkshire,  with  48,937, — less  than  two  thirds 
the  number,  —  can  elect  thirty-three  representatives.  Barn- 
stable, with  33,997  inhabitants,  may  elect  fifteen  representa- 
tives, and  Hampshire,  with  34,290  inhabitants,  may  elect 
twenty-four^  almost  twice  as  many.  Bristol,  with  74,979,  can 
elect  thirty  representatives,  and  Franklin,  with  30,888,  a  little 
over  one  third  as  many,  can  elect  twenty-six  representatives. 
We  need  not  further  follow  the  county  comparison  to  see  that 
no  relief  can  be  derived  from  that  source. 

Let  us  now  see  how  the  system  operates  upon  the  different 
sections  of  the  State.  The  three  northwestern  counties,  with 
a  population  of  114,115,  may  elect  83  representatives,  while 
Norfolk  and  Bristol,  with  154,121,  can  elect  only  61,  and 
Norfolk,  Bristol,  and  Barnstable,  with  188,118  inhabitants, 
can  elect  only  76.  The  Old  Colony,  with  176,680  inhabit- 
ants, may  elect  76  representatives,  while  the  three  northwest- 
ern counties,  with  a  population  of  114,115,  can  elect  83. 

I  will  present  one  or  two  other  statistical  views,  and  then 
relieve  your  patience  on  this  part  of  the  subject.  The  county 
of  Norfolk,  as  I  have  stated,  has  77,441  inhabitants,  and  31 
representatives.  There  are  in  other  parts  of  the  State  96 
towns  having  74,812  inhabitants  and  96  representatives, — 
over  three  times  as  many  as  Norfolk.  Again,  Bristol,  with 
74,979  inhabitants,  has  but  30  representatives,  while  the  be- 
fore-mentioned 96  towns,  with  a  less  population,  have  96,  — 
more  than  three  times  as  many.  These  96  towns  with  96 
representatives  have,  as  before  stated,  74,812  inhabitants,  and 
the  three  counties  of  Norfolk,  Bristol,  and  Barnstable,  with 
188,118  inhabitants,  have  but  76  representatives. 

There  is  one  other  aspect  in  which  I  wish  to  present  this  sub- 
ject. It  is  highly  important  that  the  several  great  interests  of  the 
Commonwealth,  as  well  as  the  people  thereof,  should  be  fairly 
represented.  The  scheme  proposed  necessarily  gives  the  ma- 
jority to  the  small  towns.  No  increase  of  population,  according 
to  this  ratio  of  representation,  can  ever  change  the  majority. 


MINORITY    TO    GOVERN.  217 

The  small  towns  are,  and  always  must  be,  agricultural. 
Hence  a  majority  always  must  represent  agriculture.  While 
I  am  willing  to  make  this  the  favored  interest,  and  give  it  a 
predominating  influence,  I  am  not  willing  to  give  the  absolute 
power  to  any  one  class.  Although  this  class  might  never  com- 
bine against  other  classes,  yet  the  sympathy  of  interest  would 
always  bring  their  votes  together  when  that  interest  was  in- 
volved. No!  letthe  whole  people, including  farmers,  merchants, 
navigators,  manufacturers,  mechanics,  and  laborers  of  every 
description,  be  represented  according  to  numbers,  and  then 
every  interest  and  pursuit  will  be  duly  cared  for  and  protected. 

I  have  already  adverted  to  the  extraordinary  influence 
which  a  great  mountain  appears  to  exert  over  subjects  which 
would  seem  to  have  no  connection  with  mountains  or  rocks 
or  tunnels,  and  I  will  now  barely  refer  to  a  most  wonderful 
coincidence.  We  have  spoken  of  the  extraordinary  declara- 
tion, that,  if  any  amendment  was  adopted  unfavorable  to  the 
Hoosac  Tunnel,  the  whole  Constitution  should  be  defeated, 
thus  making  that  enterprise  of  more  importance  than  any 
amendment  which  can  be  proposed.  And  in  connection  with 
this  we  have  the  fact  that  representation  of  the  section  inter- 
ested in  this  project  is  double  the  representation  of  other  sec- 
tions of  the  State.  I  will  offer  no  comments  on  a  coinci- 
dence so  remarkable  ;  but  leave  it  for  the  meditation  of  the 
curious  in  such  subjects. 

There  is  no  limit  to  the  illustration  of  the  unfairness  and 
absurdity  of  this  scheme  of  representation.  But  I  am  sure 
that  I  have  gone  far  enough  to  satisfy  you  that,  in  all  its  re- 
lations, whether  to  town,  county,  sections,  or  interests,  it  is 
monstrously  unequal,  unrighteous,  and  dangerous.  It  reverses 
the  fundamental  principles  of  free  government,  by  giving  to  a 
small  minority  the  controlling  power.  By  this  scheme  three 
TENTHS  of  the  people  elect  a  majority  of  the  House  of  Repre- 
sentatives. And  less  than  one  half  of  the  people  can  elect  tv^o 
thirds  of  the  House.  Is  there  any  safety  for  the  liberty,  the 
personal  rights,  or  the  property  of  the  majority,  when  so  small 
a  minority  can  govern?  Is  there  any  guaranty  that  your  Con- 
stitution will  not  be  made  worse,  when  a  bare  majority,  and 
even  less,  in  some  stages,  may  propose  amendments  ? 
20 


218  NUMBER    OF    REPRESENTATIVES. 

Another  insurmountable  objection  to  this  is,  that  it  makes 
a  House  altogether  too  large  for  the  intelligent  and  deliberate 
transaction  of  the  public  business.  The  people  everywhere 
demanded  a  diminution  of  the  House ;  but  the  Convention, 
in  defiance  of  their  wishes,  increased  it.  Such  a  multitudi- 
nous assembly  necessarily  falls  under  the  influence  of  ambi- 
tious and  aspiring,  if  not  unscrupulous  men,  and  becomes  a 
piece  of  machinery  controlled  by  party  leaders ;  and  questions, 
too  often,  instead  of  being  decided  in  the  Capitol,  are  settled  in 
caucuses.  The  great  and  growing  State  of  New  York,  with  its 
three  millions  of  inhabitants  and  its  imperial  territory,  has  but 
one  hundred  and  twenty-eight  members  of  the  Assembly.  The 
great  States  of  Pennsylvania  and  Ohio,  with  their  two  mil- 
lions each,  and  their  extensive  territories,  have  but  one  hun- 
dred in  the  lower  House.  And  the  State  of  Tennessee,  with 
as  many  inhabitants  and  six  times  as  much  territory  as  we 
have,  has  but  seventy-five  representatives.  Why  should  we 
employ  four  or  five  times  as  many  agents  to  transact  our 
business  as  these  great  States  employ?  I  am  in  favor  of  a 
pretty  full  representation  of  the  people ;  but  having  regard  to 
the  size  of  our  territory  and  our  present  and  probable  future 
population,  in  my  opinion  one  hundred  and  twenty,  or  at  most 
a  hundred  and  fifty  members,  would  compose  a  better  House 
than  any  larger  number. 

Another  strong  objection  to  this  scheme  is  its  tendency  to 
increase  the  number  of  the  House,  already  much  too  large. 
The  number  will  be  increased  by  the  multiplication  of  towns. 
Although  the  introduction  of  the  absurd  and  arbitrary  rule 
that  new  towns  of  less  than  fifteen  hundred  inhabitants  shall 
not  be  allowed  any  representative,  may  discourage  and  retard 
the  formation  of  new  towns,  it  will  not  prevent  it.  New 
towns  will  sometimes  be  formed  with  more  than  fifteen  hun- 
dred inhabitants,  and  old  towns  will  be  left  with  a  very  small 
number ;  and  both  will  be  represented.  The  principal  in- 
crease of  population  will  be  in  the  large  towns.  The  ratio  of 
representation  is  to  be  founded  on  the  ratio  of  increase  in  the 
whole  Stale,  so  that,  while  it  greatly  increases  the  inequality 
of  representation,  it  will  also  somewhat  increase  the  number 
of  members.     This  intricate  and  mysterious  rule,  fruitful  only 


PERPETUITY    OF    THE    EVIL.  ^_  219 

of  evil,  possesses  the  peculiar  power  of  disfranchising  a  part  of 
the  people  ;  of  increasing  the  number  of  representatives  ;  and 
of  rendering  the  apportionment  more  unequal  and  unjust. 

I  must  add,  that  this  rule  possesses  a  further  extraordi- 
nary property.  It  has  the  power  of  perpetuating-  and  rendering" 
irremediable  the  evil  ichich  it  creates.  If  you  adopt  this  sys- 
tem, and  place  the  power  in  the  hands  of  a  small  minority,  you 
must  never  expect  them  to  give  it  up.  This  would  be  contrary 
to  all  experience  and  the  principles  of  human  nature.  Who 
ever  knew  the  few  holding  power  voluntarily  to  surrender  it 
to  the  many?  The  history  of  the  very  amendment  we  are 
now  considering  furnishes  a  strong  illustration  of  this  prin- 
ciple. 

Various  propositions  were  submitted  in  the  Convention  to 
divide  the  State  into  districts,  and  to  reduce  the  representation 
and  make  it  as  equal  as  practicable.  These  were  all  rejected 
by  large  majorities,  and  the  present  system  was  adopted  by  a 
very  large  majority.  But  how  were  these  majorities  com- 
posed ?  Did  the  popular  majority  declare  against  these  propo- 
sitions ?  By  no  means.  They  were  rejected  by  those  who, 
having  an  undue  share  of  power,  were  determined  to  increase 
it,  at  the  expense  of  those  who  already  had  less  than  they 
were  entitled  to.  I  did  not  make  the  calculation,  and  do  not 
speak  from  personal  knowledge.  But  a  gentleman  in  whose 
accuracy  I  have  entire  confidence  made  the  calculation,  and 
found  that,  although  the  majority  in  the  Convention  was 
nearly  one  hundred,  yet  that  those  who  voted  for  the  equal 
representation  by  districts  represented  421,000,  while  the  great 
majority  represented  only  386,000.  Thus  the  rule  that  the 
minority  holding  the  power  will  never  give  it  up,  aided  by 
party  tactics,  triumphed  over  the  will  of  the  people. 

Will  you  excuse  a  little  more  detail  on  this  subject?  My 
first  motion  was  to  establish  the  number  which  should  com- 
pose the  House;  apportion  this  number  among  the  several 
counties  as  near  as  possible  (without  dividing  towns  and  the 
wards  of  cities),  according  to  population,  or  ratable  polls,  or 
legal  voters,  as  might  be  preferred ;  and  then  let  each  county 
be  subdivided  into  districts  for  one,  two,  or  three  members,  so 
as  to  let  each  member  represent  as  nearly  as  practicable  an 


220  FUTURE    REVISIONS. 

equal  number.  This  was  rejected.  And  then  I  offered  a 
proposition  to  submit  to  the  people,  when  they  voted  on  the 
adoption  of  the  Constitution,  the  question  whether  they  would 
accept  the  above  proposition  or  the  town  representation  as 
proposed  in  the  amended  Constitution.  I  thought  the  right 
to  settle  this  question  belonged  to  the  people,  and  that  nothing 
could  be  fairer  than  to  leave  the  matter  directly  to  them.  But 
this  was  objected  to.  And  it  was  declared  in  debate  by  a 
leading  delegate,  that,  if  this  was  left  to  the  people,  "  they 
would  go  with  a  hurrah  for  the  district  system" ;  and  thereupon 
it  was  thought  necessary  to  put  it  aside  indirectly,  instead  of 
taking  a  direct  vote  upon  it.  A  motion  was  accordingly  made 
to  substitute  another  plan  for  districting,  which  would  be  in 
no  danger  of  being  adopted  either  with  or  without  a  "  hurrah." 
I  thought  I  had  reason  to  complain  of  the  course  adopted  in 
refusing  a  direct  vote  on  my  motion  ;  but  I  shall  say  nothing 
of  that,  as  I  have  not  come  here  to  seek  redress  of  personal 
grievances.  The  substitute  was  adopted  instead  of  my  plan, 
and  now  forms  a  part  of  the  proposed  Constitution. 

By  this,  which  is  the  4th  article  of  the  14th  chapter,  the  Leg- 
islature in  1856  is  required  to  divide  the  State  into  single  or 
double  equal  districts  for  the  choice  of  representatives.  When 
it  is  recollected  that  the  duty  of  forming  these  districts  is  de- 
volved upon  a  Legislature,  a  large  majority  of  whom  will  be 
from  small  towns,  and  utterly  opposed  to  the  whole  district 
system,  and  that  it  will  be  in  accordance  with  their  interests, 
as  well  as  their  opinions,  to  defeat  the  whole  scheme,  it  can 
hardly  be  doubted  that  they  will  either  make  such  hideous 
districts  that  the  people  will  be  obliged  to  reject  them,  or  that, 
through  a  disagreement  between  the  two  branches,  they  will 
fail  to  make  any  districts  at  all.  In  this  way  this  substitute, 
having  answered  its  main  purpose  by  defeating  my  motion, 
will  he  functus  officio. 

In  this  connection  it  will  be  proper  to  advert  to  the  provis- 
ion for  future  revisions  of  the  Constitution.  All  Conventions 
hereafter  to  be  called  are  to  be  founded  upon  the  same  un- 
righteous rule  as  the  House  of  Representatives,  with  the  addi- 
tional evil  of  allowing  non-resident  representation.  Should 
this  Constitution  be  adopted,  what  hope  will  remain  for  any 


PARTY    DISCIPLINE.  221 

improvement  in  it  hereafter  ?  Fellow-citizens,  will  you  submit 
to  such  imposition  and  self-degradation  ?  Now  is  the  time  to 
resist.  Will  you  hold  out  your  hands  to  have  the  fetters  well 
riveted  ?  Or  will  you  spurn  the  chains  before  the  rivets  are 
clenched  ? 

I  have  now  presented  to  your  consideration  such  of  the 
acts  done  by  the  Convention  as  my  time  and  strength  have 
enabled  me  to  do ;  and  you  will  judge  whether  they  are  wor- 
thy of  your  adoption,  or  whether  they  are  such  as  ought  to 
condemn  the  whole  proceedings  of  that  body. 

But  if  the  objections  which  I  have  stated  have  any  foun- 
dation, how  do  the  advocates  expect  to  procure  the  adoption 
of  the  amendments  ?  Their  principal  reliance  must  be  upon  * 
party  discipline^  and  the  weight  of  the  recommendation  of  the 
Convention.  They  also  may  well  rely  upon  their  eloquence 
and  arts  of  persuasion.  But  let  us  for  a  moment  look  at  a 
few  of  the  arguments  which  are  advanced. 

I  believe  all  of  the  advocates  admit  that  some  of  the  articles 
are  objectionable  to  some  people,  but,  say  they,  you  must 
adopt  the  whole  now,  or  you  will  never  get  any  amendments, 
for  the  people  will  never  call  another  Convention.  Are  they 
aware  what  is  the  admission  necessarily  implied  by  this  ? 
Why  will  the  people  never  call  another  Convention  ?  Will 
they  not  continue  to  have  the  same  power  ?  There  can  then 
be  no  other  reason  for  their  refusal,  than  that  the  people  are 
so  disgusted  and  dissatisfied  with  the  action  of  this  Conven- 
tion, that  they  will  never  trust  another. 

They  also  say,  that  all  admit  that  some  of  the  provisions 
are  good  and  beneficial,  and,  in  order  to  secure  these,  they 
must  vote  for  the  whole,  including  the  bad  as  well  as  the  good  ; 
for  they  are  all  put  together  in  one  proposition,  and  you  can- 
not obtain  what  you  like  unless  you  take  what  you  dislike. 
But  who  put  them  together  ?  Did  not  their  advocates  con- 
nect them  for  the  very  purpose  of  having  this  argument  to 
urge? 

Again,  they  say  the  old  Constitution  is  very  defective  and 

imperfect,  and  the  only  way  to  remedy  this  is  to  adopt  the 

new  one.     We  admit  the  defects  of  the  old  Constitution,  and 

we  once  thought  no  rational  men  would  ever  make  another 

20* 


222  TOWN    ORGANIZATIONS. 

equally  defective.  But.  in  this  we  have  found  ourselves  mis- 
taken, for  the  new  Constitution  is  really  much  worse  than  the 
old  one ;  and  to  take  it  in  order  to  get  rid  of  the  latter,  would  be 
to  adopt  a  great  evil  that  we  might  escape  from  a  smaller  one. 
There  being  no  justification  of  unequal  representation,  the 
accommodation  of  the  scheme  proposed,  which  its  advocates 
mainly  rely  upon,  is  founded  upon  our  system  of  town  organ- 
ization. They  extol  this  system  as  being  invaluable.  I 
fully  agree  to  the  soundness  of  their  views  on  this  point.  But 
the  defect  of  their  argument  is,  that  the  inference  has  no  con- 
nection with  the  premises.  Indeed,  the  opposite  conclusion 
seems  to  be  the  more  natural  one. 

The  value  and  importance  of  our  municipal  system  are  fully 
appreciated.    Our  towns  are  indeed  little  democracies.    Town- 
meetings  are  primeval  legislative   bodies,  possessing,   within 
their  proper  spheres,  powers,  upon  the  wise  exercise  of  which, 
in  a  high  degree,  depend  the  well-being  and  happiness  of  the 
citizens.     In  these  assemblies   are  considered  and  discussed 
such  subjects  as  the  laying  out,  making,  and  repairing  of  high- 
ways, —  the  financial  affairs,  —  the  support  and  employment  of 
paupers, —  the  maintenance  of  public  schools  and  the  forma- 
tion of  districts  for  that  purpose,  —  the  enacting  of  by-laws  and 
the  management  of  the  police,  and  the  management  of  the 
general  affairs  of  the  town,  —  and  the  adoption  of  petitions, 
remonstrances,  and  approbatory  and  denunciatory  resolutions^, 
—  and  many  other  matters  of  deep  interest  to  the  inhabitants. 
These  topics  engage  the  attention  of  the  citizens,  and  open 
for  investigation  and  discussion,   not   only  local  affairs    and 
municipal   regulations,  but   the  science  of  government    and 
the  whole  range  of  politics.     In  the  investigation,  discussion, 
and  disposition  of  these  subjects  consist  the  excellence  and 
advantage  of  these  democratic  schools.      But  is  there    any 
thing  in  the  election  of  one  or  more  representatives,  which 
adds  in  the  slightest  degree  to  their  utility  ?     Will  not  the 
voting  for  a  representative  of  a  district  be  just  as  instructive 
and  beneficial,  as  voting  for  a  representative  of  a  town  ?    Will 
not  the  act,  and  the  effect  of  the  act  upon  the  actors,  be  pre- 
cisely the  same  in  both  cases  ? 

But  the  effect  of  the  instruction  and  political  teachings  will 


PARTISANSHIP.  223 

be  entirely  different.  The  whole  training  and  practice  under 
our  beautiful  municipal  systems  teaches  a  reliance  upon  man, 
and  not  his  accidents,  —  the  perfect  equality  of  all  mankind, — 
and  thus  prepares  the  mind  for  equal  representation.  There- 
fore the  proposed  system  violates  the  first  and  fundamental 
principles  taught  and  practised  in  our  municipal  democracies. 

Our  parishes  and  school  districts  are  invaluable  ingredients 
in  the  formation  of  our  beautiful  scheme  of  free  government. 
And  the  choice  of  a  representative  by  each  of  these  corpora- 
tions might  just  as  well  be  insisted  upon  as  a  choice  by  towns. 

Probably  the  most  anti-democratic  absurdity  into  which 
this  unjust  scheme  has  driven  its  advocates  is  the  representa- 
tion of  corporations.  Unable  to  find  any  other  sufficient  ba- ' 
sis  for  so  unequal  a  system,  they  are  compelled  to  rest  on  cor- 
porations for  that  portion  which  the  population  will  not  sus- 
tain. If  any  one  thing  is  less  entitled,  and  more  unfit,  to  be 
represented  than  any  other,  it  is  that  anomalous,  bodiless,  soul- 
less, irresponsible,  everlasting  legal  entity,  called  a  corporation. 
It  has  no  principle  to  sustain  it,  and  no  precedent  to  excuse  it, 
except  in  the  British  Parliament.  And  even  there  the  rotten- 
borough  system,  which  we  propose  to  imitate,  became  so  ab- 
horrent to  the  political  light  of  the  present  day,  that  they  were 
constrained  to  exscind  its  most  prominent  enormities. 

It  now  only  remains  for  me  to  ask  your  attention  to  the 
manner  in  which  the  proposed  amendments  were  prepared 
and  presented  to  the  people. 

In  the  first  place,  does  the  review  which  we  have  just  taken 
show  that  enlightened  patriotism,  or  short-sighted  partisanship, 
—  broad  statesmanship,  or  narrow  party  tactics,  —  the  love  of 
democratic  equality,  or  the  love  of  political  spoils,  —  in  short, 
that  principle,  or  expediency,  were  the  more  prominent  consid- 
erations in  the  proceedings  of  the  Convention  ?  The  people 
will  judge,  and  by  their  votes  on  Monday  next  determine. 
If  the  result  was  the  dictate  of  disinterested  love  of  countryj 
you  should  give  it  a  favorable  consideration  ;  if  of  party,  the 
presumption  is  that  it  is  wrong  and  should  be  spurned,  —  if  for 
no  other  reason,  to  rebuke  the  admission  of  that  fell  spirit  in- 
to such  a  body. 


224  AMENDMENTS    IN    A    MASS. 

The  majority  of  the  Convention  professed  to  be  democratic 
reformers.  But  if  we  judge  of  them  by  their  acts,  we  shall  be 
led  to  the  conclusion,  that  a  distrust  of  the  intelligence  of  the 
people  or  a  dread  of  the  popular  power  influenced  many  of 
their  decisions.  When  it  was  proposed  to  leave  it  to  the 
people  to  decide  whether  they  would  adopt  the  plurality  rule, 
they  were  denied  the  power.  When  those  democratic  meas- 
ures, the  secret  ballot  and  universal  suffrage,  were  passed,  the 
people  were  not  allowed  the  full  benefit  of  them,  but  were 
limited  in  the  application  of  them,  just  as  you  would 
guard  children  against  the  too  free  use  of  edged  tools  and 
fire-arms.  And  when  an  attempt  was  made  to  retain  in 
the  hands  of  the  people  the  power  to  loan  the  credit  of  the 
State,  the  attempt  was  resisted  and  defeated  on  the  avowed 
ground,  that  the  people  were  not  competent  to  exercise  the 
powers,  —  not  capable  of  taking  care  of  their  own  money  and 
their  own  credit !  What  sort  of  reform,  what  sort  of  progress, 
what  sort  of  democracy,  is  this  ?  I  was  always  taught,  that 
faith  in  the  people  was  the  criterion  of  democracy. 

But  the  crowning  act  of  the  Convention,  the  measure  which 
shows  at  once  their  distrust  of  the  intelligence  of  the  people 
and  their  disregard  and  contempt  of  their  will,  was  the  mode 
of  submitting  the  amendments  to  the  action  of  the  people. 
Everybody  everywhere  supposed  that  there  was  but  one  way 
in  which  these  could  properly  be  submitted.  That  was,  that 
each  independent  proposition  should  be  presented  by  itself,  so 
that  every  elector  should  have  perfect  freedom  in  voting  up- 
on it.  Even  the  members  of  the  Convention,  until  near  the 
close  of  the  session,  were  as  strong  and  as  well  united  in  thia 
opinion  as  the  people  themselves.  They  well  knew  that  they 
were  elected  to  amende  and  not  to  make,  a  Constitution.  No 
action  was  had  on  the  subject,  no  instructions  were  given 
to  any  committee,  in  relation  to  the  manner  in  which  the 
amendments  agreed  upon  should  be  presented  to  the  people 
for  their  action.  But  just  before  the  close  of  the  session,  the 
committee  appointed  to  put  the  amendments  into  the  form 
in  which  they  were  to  be  submitted,  assumed  authority  also 
to  recommend  the  manner  of  their  submission,  and  accord- 
ingly reported  a  resolve,  which  presented  nearly  all  the  amend* 


AMENDMENTS    SEPARATE.  225 

ments,  including  all  the  most  important  ones,  in  one  proposi- 
tion, and  doled  out  six  or  seven  minor  propositions  for 
the  separate  action  of  the  people.  By  some  secret  charm 
or  talismanic  influence,  the  great  majority  of  the  Con- 
vention were  converted  from  their  former  notions,  and  the 
plan  was  adopted  by  an  overwhelming  vote.  But  so  strong 
was  the  conviction  of  the  unfairness  and  injustice  of  the  meas- 
ure, that,  since  its  passage,  no  one  seems  to  covet  the  pater- 
nity of  it,  and  boldly  and  manfully  to  defend  and  justify  it. 

One  of  the  prominent  advocates  of  the  new  Constitution, 
whose  speech  in  Faneuil  Hall  was  published  in  the  Boston 
Post,  is  reported  to  have  said,  on  this  point,  that  he  ^^  should 
have  been  glad  to  have  seen  some  things  submitted  separately, 
and  tried  to  bring  about  that  resultP  I  cannot  question  the 
gentleman's  sincerity,  for  he  made  a  speech  in  the  Convention 
in  favor  of  a  separate  submission.  But  he  was  on  the  com- 
mittee who  reported  the  plan  which  was  accepted,  and  under 
which  we  are  now  acting ;  and  although  party  spirit  and 
party  discipline  sometimes  make  strange  work  with  our  men- 
tal and  moral  powers,  I  think  he  cannot  have  forgotten  the 
proceedings  of  the  committee.  The  plan,  precisely  as  it  now 
stands,  including  every  article  of  the  first  proposition,  with- 
out the  change  of  a  word  or  a  letter,  was  adopted  in  the 
committee  by  a  vote  of  seven  to  six,  the  gentleman  himself 
voting  in  the  affirmative.*  I  do  not  doubt  that  this  gentle- 
man, and  other  members  of  the  committee,  and  many  other 
members  of  the  Convention,  who  by  some  influence  or  con- 
siderations satisfactory  to  their  own  minds  were  induced  to 
vote  for  the  plan,  would  sincerely  and  truly  "  have  been  glad 
to  have  seen  some  things  submitted  separately." 

But  let  us  look  a  little  into  this  plan.     Why  were  all  the 


*  This  the  Hon.  B.  F.  Hallett,  in  one  at  least  of  his  many  speeches,  pronounced, 
in  language  selected  by  his  own  taste,  "  a  base  falsehood"  It  was  well  known  in 
the  Convention  how  the  committee  divided  on  this  report.  Those  who  were  in 
favor  of  it  were  Boutwell,  Allen,  Griswold,  Dana,  Abbott,  Knowlton,  and  Hallett. 
Those  who  were  opposed  to  it  were  Morton,  Choate,  Parker,  Briggs,  Lord,  and  OU- 
?;er.  That  the  last  six  were  opposed  to  the  report  is  perfectly  well  known,  and 
may  be  verified  by  inquiry  of  them.  If  Mr.  Hallett  was  not  in  favor  of  it,  then  it 
never  was  adopted  by  a  majority. 


226  PARTY    ARTIFICE. 

important  amendments  grouped  together,  and  only  some 
minor  ones  submitted  separately  ?  Why  not  submit  them 
all  together,  or  all  separately  ?  There  must  be  some  powerful 
reason  for  this  extraordinary  distinction.  Can  it  be  that  the 
Convention  desired  and  intended  to  resort  to  an  artifice  to 
get  the  people  to  make  a  show  of  approving  what  they  in 
their  hearts  disapproved,  and  to  give  a  legal  assent  to  an 
amendment  which  they  secretly  detested?  Is  it  possible  that 
Democrats,  nay,  that  those  who  pretend  to  be  more  than  Dem- 
ocrats,—  to  be  "  Free  Democrats,"  or  "  Democratic  Democrats," 
—  can  desire  to  get  any  constitutional  provision  legally  adopted 
without  and  against  the  wishes  of  a  majority  of  the  people  ? 
If  that  be  "  Free  Democracy,"  I  say  give  us  the  article  in  its 
pristine  purity.  How  did  it  happen  that  all  the  amendments 
supposed  to  be  popular  were  united  with  the  representative 
scheme,  and  all  of  doubtful  popularity  were  submitted  sepa- 
rately ?  Was  that  so  repugnant  to  the  opinions  and  wishes 
of  the  people,  that  it  required  every  ihing  of  good  that  the 
Convention  did,  to  induce  the  people  to  swallow  it  ?  I  fear 
there  can  be  but  one  answer  to  this  question.  The  veil  is  too 
thin  to  conceal  the  object.  It  must  have  been  to  constrain 
the  people,  nolens  volens,  to  vote  for  this  scheme.  Some  of 
the  members  had  the  candor  to  avow  this.  Well  may  we 
say,  in  the  language  which  one  of  the  committee  used  on 
another  occasion,  "  You  need  not  attempt  to  disguise  it 
Everybody  will  see  through  it.  The  lion's  skin  is  not  half 
big  enough  to  cover  that  other,  animal.  His  ears  stick  out,  in 
all  their  longitude." 

But  again,  does  not  this  mode  of  submission  necessarily 
operate  as  a  restraint  upon  the  freedom  of  the  people  ?  A 
man  may  like  some  of  the  many  things  which  are  combined, 
and  dislike  others.  He  is  necessarily  compelled,  either  to  vote 
for  what  he  dislikes,  or  against  what  he  likes.  It  operates 
not  only  as  a  threat,  but  also  as  a  bribe.  It  virtually  declares 
that,  if  you  will  not  vote  for  this  thing  which  you  do  not  want, 
you  shall  not  have  another  thing  which  you  do  want,  or  it 
holds  out  the  corrupting  inducement,  that  you  may  have  what 
you  think  is  rig-ht,  if  you  will  take  with  it  what  you  believe  to 
be  wron^.     It  is  the  Jesuit's  rule,  that  the  end  justifies  the 


JESUITISM,    PARTY.  227 

means.  Do  lorong"  that  "good  may  come  from  it.  Spurn 
such  a  rule.  Do  what  is  rig-ht  and  just  in  itself,  and  leave  the 
event  to  Providence.  Such  a  course  is  always  expedient,  as 
well  as  righteous.  A  wrong  to  one  individual  can  never  be 
justified  by  any  amount  of  benefit  to  others.  If  there  is  one 
unrighteous  provision  in  this  general  proposition,  nothing  can 
justify  a  vote  in  favor  of  it,  however  wise  and  just  in  every 
thing  else  it  may  be.  The  responsibility  rests  on  those  who 
made  the  unjust  connection. 

I  will,  in  conclusion  on  this  point,  say,  that  the  representa- 
tive has  no  right  to  restrain  the  free  action  of  his  constituent; 
the  agent  has  no  power  to  give  orders  to  his  principal ;  nor 
the  servant  to  dictate  to  his  master.  I  cannot  express  my 
abhorrence  of  this  scheme  better,  than  by  repeating  what  I 
said  of  it  in  the  Convention.  I  there  said  that  it  was  like 
those  having  authority  declaring  to  the  religious  man.  You 
may  have  a  church  if  you  will  place  a  gambling-house  by 
the  side  of  it ;  or  to  the  friend  of  education.  You  may  have  a 
female  seminary,  if  you  will  place  a  house  of  assignation 
next  to  it;  but  they  are  so  connected,  that  you  cannot  have 
the  one  without  the  other.  I  said  I  would  let  the  church  and 
the  school  go,  before  I  would  take  them  at  such  a  sacrifice. 
I  would  not  be  hired,  by  any  price,  to  do  an  unjust  act.  And 
I  hope  the  people  will  now  join  me  in  saying,  that  the  Con- 
vention, by  what  they  have  neglected  to  do,  by  what  they 
actually  have  done,  and  by  the  manner  in  which  they  have 
done  it,  have  forfeited  their  respect  and  confidence,  and  in- 
curred their  deepest  disapprobation  of  all  their  proceedings. 

I  have  now  adverted  to  nearly  all  the  matters  which  I  in- 
tended to  discuss.  I  am  aware  that  there  are  many  other 
things  worthy  of  deep  consideration.  But  I  must  leave  them 
to  be  suggested  by  your  own  reflections.  Enough  has  been 
said  to  show  pretty  fully  the  working  and  bearing  of  all  the 
proposed  amendments,  and  the  nature  and  character  of  the 
proceedings  of  the  Convention.  You  have  seen  that  it  was 
conceived  by  party, —  was  planned  by  party,  —  was  proposed 
by  parly,  —  was  sustained  by  party,  —  was  carried  through  by 
party, —  was  conducted  in  all  its  operations -by /?ar^y,  —  and 


228  DEMOCRATIC    PRINCIPLES. 

that  its  proceedings  were  of  a  party  character ;  and  that,  if  the 
amendments  are  adopted,  it  will  be  by  a  party  vote.  Are  you, 
fellow-citizens,  willing  to  have  a  party  Constitution  ? 

And  what  is  the  political  character  of  the  party  who  have 
controlled  the  action  of  the  Convention  ?  While  they  claim 
to  be  Democrats  and  something  more,  have  not  the  measures 
which  they  have  proposed  shown  them  to  be  devoid  of  the 
feelings  and  principles  of  a  true  Democracy  ?  And  have  not 
their  own  declarations  sustained  and  confirmed  the  same 
thing?  Scarcely  had  the  Convention  commenced  its  session, 
when  he  who  was  an  acknowledged  leader  in  that  body,  who 
has  since,  by  the  united  votes  of  the  Liberty  party,  been  rec- 
ognized as  the  true  representative  of  their  principles,  declared 
'■Hliat  the  power  of  the  Convention  had  no  limit  but  its  own 
will."  Is  this  the  Democratic  rule  of  construing  delegated 
power  ?  It  would  better  suit  the  latitude  of  Russia  or  Aus- 
tria, than  the  genial  climate  of  a  free  country.  ,And  another 
distinguished  member  of  the  same  party,  alike  honorable  for 
talents,  learning,  sincerity,  and  frankness,  in  discussing  the 
basis  of  representation,  declared  of  a  portion  of  our  population, 
that  we  '■'might  as  well  count  the  cattle  in  the  farmer'' s  fields  or 
the  crows  that  fiy  over  it";  thus  comparing  this  very  numer- 
ous class,  not  merely  to  the  beasts  of  the  field  and  to  the  birds 
of  the  air,  but  to  that  filthy,  mischievous,  thievish,  carrion 
bird,  the  crow,  —  the  disgust  and  abhorrence  of  the  farmer. 
If  these  distinguished  leaders  speak  the  sentiments  of  the 
Free  Soil  party,  (and  who  has  a  better  right  to  speak  for 
them?)  we  may  judge  what  they  mean  by  the  "  equal  rights  of 
man,"  and  "the  sodality  of  the  human  family";  and  under- 
stand them  when  they  speak  of"  Free  Democracy,"  and  de- 
nominate any  one  a  "Democratic  Democrat." 

I  declared  in  the  commencement  of  my  remarks,  that  I 
came  before  you  as  a  Democrat,  and  I  should  discuss  the  pro- 
posed amendments  on  Democratic  principles.  Have  I  redeemed 
my  pledge  ?  I  should,  however,  be  glad,  were  there  not  so 
many  Whigs  present,  to  address  a  few  remarks  specially  to 
my  Democratic  friends.  And  as  it  is,  I  believe  I  will  let 
them.  out.     They  may  not  be  entirely  lost  upon  the  Whigs. 


THE    DEMOCRATIC    PARTY.  229 

Fellow-Democrats,  the  line  of  our  party  was  formerly  pretty 
plainly  drawn  and  distinctly  marked.  The  landmarks  M-ere 
principles,  and  these  stood  out  so  distinctively,  that  we  had 
no  fear  of  mistaking  our  own  boundaries,  or  allowing  others 
to  come  within  them.  There  was  then  no  disposition  to 
tear  down  our  partition  wall,  and  occupy  our  fields  in  com- 
mon with  adjoining  owners.  We  feared  that  the  cross  of 
blood  which  would  ensue  would  greatly  deteriorate  our  stock, 
and  the  intercourse  would  render  both  vicious.  But,  of  late, 
we  have  had  so  many  platforms  made,  and  so  many  defective 
planks  put  in  them,  and  the  planks  have  so  often  been 
changed,  that  we  hardly  know  where  we  stand,  or  when  we 
safely  stand. 

My  advice  is,  that  we  eschew  all  modern  inventions,  and 
stick  to  the  original  platform  as  first  laid  down  by  our  fathers  of 
the  Revolution,  the  authors  of  the  Declaration  of  Independence, 
and  the  framers  of  our  Constitution,  as  it  was  trodden  by  Jef- 
ferson, and  Madison,  and  Jackson.  Every  stick  of  the  old 
platform  is  perfectly  sound,  without  a  flaw  or  the  slightest 
indication  of  decay.  .As  long  as  we  firmly  stand  on  this,  no 
harm  can  come  to  us.  Be  careful  not  to  be  led  away  by 
collateral  matters.  Do  not  be  diverted  by  any  side  issues. 
Be  not  tempted  to  mount  any  inviting  hobby  that  may  be  led 
to  your  door.  From  these  sources  spring  all  our  danger. 
They  have  caused  all  our  embarrassment  in  relation  to  our 
extraordinary  constitutional  propositions. 

But  the  recommendation  of  a  strict  adherence  to  the  prin- 
ciples of  your  party  implies  no  illiberality,  much  less  prejudice, 
against  any  other  party^  The  rule  which  you  prescribe  to 
yourselves,  you  will  allow  to  others.  The  great  questions  for 
w^hich  we  have  struggled  so  manfully  against  the  Whigs  have 
been  settled  in  our  favor,  and  acquiesced  in  by  them.  The 
distance  between  the  two  parties,  formerly  so  wide,  has 
greatly  diminished.  As  the  Whig  party  has  yiefded  to  us  in 
so  many  important  points,  let  no  remembrance  of  former  hos- 
tility, let  no  appeal  to  party  prejudice,  impel  us  to  vote  against 
a  measure  merely  because  they  are  for  it,  nor  deter  us  from 
voting  for  what  is  right  because  they  support  it. 

You  know,  gentlemen,  that  I  have  always  been  opposed  to 
21 


230  THE    COALITION. 

coalitions.  All  history  shows  that  coalitions  have  always  been 
devoid  of  consistent  common  principles,  and  been  short-lived 
and  productive  of  mischievous  consequences.  I  have  always 
advised  a  union  of  all  men  who  entertained  the  same  princi- 
ples, by  whatever  different  names  they  may  have  been  distin- 
guished. But  I  have  ever  opposed  a  combination  of  parties 
of  different  principles,  for  the  purpose  of  gaining  a  political 
triumph,  or  of  distributing  the  honors  and  emoluments  of  office 
and  place  among  the  contracting  parties.  I  always  believed 
such  coalitions  to  be  unprincipled  and  dangerous.  I  would 
say,  let  each  man  vote  according  to  his  own  convictions,  and 
leave  the  principles  of  our  government  to  work  out  the  conse- 
quences. Be  assured  that  such,  in  the  long  run,  will  be  pro- 
ductive of  the  greatest  good  to  the  country,  to  yourselves,  and 
to  every  honest,  well-principled  party. 

I  am  rejoiced  that  the  National  Administration  has  placed 
itself  so  distinctly  upon  this  old-fashioned  Democratic  ground. 
I  am  rejoiced  that  the  President  has  "  set  his  face  like  a  flint" 
against  these  unholy  coalitions,  and  especially  against  the 
Coalition  in  this  State ;  and  holds  that  "  the  Democrats  who 
have  participated  in  this  have  done  worse  than  to  commit  a 
fatal  error.  They  have  abandoned  a  principle."  Let  us  then 
strictly  adhere  to  the  pure  old  Democratic  faith,  unalloyed  by 
the  intermixture  of  any  other  tenets.  Let  us  strictly  adhere 
to  and  faithfully  execute  the  compromises  of  the  Constitution, 
neither  enlarging  nor  diminishing  them  by  a  single  hair's 
breadth. 

The  constitutional  amendments  are,  beyond  all  question, 
the  genuine  production  of  the  Massachusetts  Coalition.  If, 
then,  the  support  of  the  Coalition  "  is  hostile,  in  the  extremest 
degree,  to  the  determined  policy  of  the  Administration"  will 
not  voting  for  the  works  of  the  Coalition  be  either  "  right- 
handed  backsliding  "  or  "  left-handed  defection "  ?  And  let 
me  appeal  to  my  Democratic  friends  and  my  Free  Soil  friends, 
if  any  such  there  be  who  voted  for  General  Pierce,  or  intend 
to  sustain  his  Administration,  how  can  they  vote  for  this  Con- 
stitution, consistently  with  their  support  of  the  present  Admin- 
istration ? 

Fellow-citizens,    I  now   close  my  remarks,  not  because  I 


DELIBERATE    CONVICTIONS.  231 

have  not  many  more  things  to  urge  against  this  Constitution, 
but  because  it  is  quite  time  that  our  deliberations  should  be 
brought  to  an  end.  This  is  probably  the  last  time  that  I  shall 
ever  make  a  political  address.  I  have  been  drawn  out,  against 
my  wishes  and  determination,  by  your  call,  and  by  the  magni- 
tude of  the  question  before  you.  I  have  considered  the  subject 
for  a  long  time,  and  with  great  care  and  coolness.  I  have 
honestly  laid  before  you  the  result  of  my  deliberations.  I 
claim  no  exemption  from  error  or  prejudice.  But  I  may  ap- 
peal to  you  to  say,  whether  there  can  be  any  motive  which  I 
can  have,  except  to  sustain  the  honest  convictions  of  my  judg- 
ment. All  my  affinities  and  predilections  were  with  the  pres- 
ent advocates  of  the  Constitution. 

I  regret  that  this  address  is  not  more  worthy  of  the  subject, 
of  the  occasion,  and  of  yourselves.  I  have  only  endeavored 
to  present  plain  facts  and  plain  inferences  in  plain  language. 
I  have  made  no  attempt  at  ornament  or  literary  display.  The 
beauties  of  rhetoric  and  the  persuasion  of  eloquence  I  have 
left  to  the  advocates  of  the  new  Constitution.  I  think  they 
will  need  all  their  power. 

For  the  facts  which  I  have  stated,  I  refer  you  to  the  public 
documents.  From  them  you  may  ascertain  their  accuracy. 
The  inferences  which  I  have  drawn,  your  own  judgments  will 
enable  you  to  test.  The  subject  is  immensely  important.  It 
embraces  principles,  the  effect  of  which  will  be  felt  for  ages  to 
come.  If  the  results  are  such  as  I  have  described  them,  the 
Constitution  proposed  to  you,  if  adopted,  must  be  productive 
of  evil  consequences,  and  very  little  else.  At  any  rate,  some 
parts  of  it  will  inflict  a  great  wrong  on  some  portions  of  the 
community.  Let  us  not,  then,  fall  into  the  fatal  error  of  doing 
wrong  to  some,  especially  to  ourselves,  in  the  hope  that  good 
will  accrue  to  others.  In  conclusion,  I  am  constrained  to  say, 
that  I  have  come  to  the  most  unwavering  conviction,  that  the 
whole  scheme  is  the  fruit  of  party  spirit^  and  is  throughout 
unequal,  anti-democratic,  and  unrighteous,  and  therefore 
ought  to  be  rejected. 


ADDRESS 

TO    THE 

CITIZENS  OFQUINCY, 

DELIVERED,  AT  THEIR  INVITATION, 

BT 

HON.  CHARLES  FRANCIS  ADAMS, 

NOVEMBER  5,  1853. 
FROM  THE  BOSTON  DAILY  ADVERTISER. 


21* 


ADDRESS  OF  ME.  ADAMS. 


My  Friends  and  Neighbors,  —  I  have  been  requested  to 
express  my  views  of  the  proposed  amendments  to  the  Consti- 
tution, and  I  see  no  reason  why  I  should  refuse  to  do  so.  On 
a  subject  like  this,  whilst  I  should  not  seek  to  obtrude  my 
sentiments  upon  others,  I  have  nothing  to  conceal.  Some  of 
you  have  applied  to  me  without  party  distinction.  On  my 
part,  I  meet  you  without  party  feeling.  My  topic  will  be  the 
Constitution,  and  nothing  else.  You  commit  yourselves  to 
nothing  by  simply  listening  to  what  I  may  say,  whilst  I  de- 
sire it  to  be  clearly  understood,  that  in  no  way  do  I  depart 
from  the  position  I  have  heretofore  held  on  other  subjects,  by 
the  course  I  deem  it  proper  now  to  take.  Here  we  are  not 
Whigs,  or  Democrats,  or  Free-Soilers,  but  simply  citizens  of 
Massachusetts,  assembled  for  the  purpose  of  consulting  upon 
our  interests  under  a  government  to  be  established  for  our 
common  good. 

For  the  first  time  in  the  history  of  this  Commonwealth,  an 
amended  form  of  Constitution  has  been  prepared  and  pre- 
sented for  adoption  in  the  midst  of  party  contentions.  I  hold 
this  to  be  the  most  unfortunate  thing  that  could  well  have 
happened,  for  it  is  entirely  unfavorable  to  the  exercise  of  that 
calmness  of  judgment  which  is  indispensable  to  the  formation 
of  a  wise  decision  upon  the  disputed  points.  For  myself,  I 
can  only  say  that  I  have  tried  very  hard  to  judge  the  question 
upon  its  own  merits,  and  upon  nothing  else.  I  have  looked 
about  me  to  see  whom  I  could  find  to  consult,  and  I  scarcely 
find  a  soul.  On  the  one  hand,  I  perceive  the  party  in  favor 
of  the   Constitution  acting    not   so  much  on   its  merits  as 


236  DANGERS    OF    PARTY. 

upon  the  idea  that  its  provisions  will  aid  them  in  all  future 
contests  with  their  opponents ;  and  on  the  other,  I  see  the 
opposing  party  resisting  it  not  so  much  on  its  demerits  as  from 
a  fear  that  it  may  impair  their  prospect  of  reestablishing  their 
ascendency.  On  all  such  calculations,  my  little  experience 
teaches  me  that  no  dependence  whatever  can  in  the  long  run 
be  placed  ;  and  even  were  it  otherwise,  they  should  not  be  per- 
mitted to  enter  into  the  question  of  the  goodness  or  badness 
of  any  form  of  government  designed  for  the  equal  benefit  of 
all.  In  such  a  state  of  aifairs,  I  have  been  driven  to  trust  the 
free  and  unbiased  exercise  of  my  own  judgment.  For  the 
results  to  which  it  was  brought,  I  pretend  to  claim  nothing 
beyond  the  merit  of  calmness  and  of  independence  of  all. ex- 
trinsic considerations. 

And  first  of  all,  let  me  specify  the  nature  of  our  task.  The 
preamble  to  the  Bill  of  Rights  prefixed  to  the  Constitution  de- 
clares that  "  the  body  politic  is  a  social  compact,  by  which  the 
whole  people  covenants  with  each  citizen,  and  each  citizen 
with  the  whole  people,  that  all  shall  be  governed  by  certain 
laws  for  the  common  good."  Of  course,  then,  each  citizen 
who  enters  into  such  a  compact  has  the  same  natural  rights 
with  every  other,  and,  in  giving  up  a  part  of  them  for  the  sake 
of  securing  the  protection  afforded  by  government,  he  is  not 
required  to  surrender  more  than  his  neighbors,  nor  to  acquire 
a  smaller  share  of  benefit  than  they.  The  only  rule  to  be 
adopted  in  such  a  compact,  then,  is  that  of  rights,  as  well  as 
obligations,  perfectly  equal.  Without  such  a  foundation,  no 
republican  form  of  government  can  possibly  be  stable,  because 
no  considerable  portion  of  the  people  who  live  under  it  will 
consent  to  suffer  the  grievous  injustice  of  established  inequal- 
ity of  rights  a  moment  longer  than  they  can  help  it.  Any  in- 
strument constructed  upon  calculations  of  benefit  gained  by 
some  at  the  expense  of  others,  will  not  last.  I  do  not  here  as- 
sume that  any  thing  of  the  kind  has  happened  in  the  present 
case;  still  less  do  I  venture  to  impute  any  intention  to  bring 
about  such  a  result  to  a  single  person  of  those  constituting  the 
majority  of  the  Convention  that  proposes  the  amendments.  All 
I  mean  now  to  point  out  is  the  absolute  and  paramount  duty  of 
us  all,  if  we  mean  to  consult  the  permanent  good  of  the  whole, 


ORGANIC    LAW. ADMmiStftATION.  23^ 

as  well  as  of  each  individual  in  the  Commonwealth,  to  raise 
ourselves  clearly  above  the  atmosphere  of  party  passions, 
which  always  tends  to  make  us  more  or  less  unjust  to  one 
another,  and  to  consider  what  is  now  offered  for  adoption 
solely  upon  its  own  merit,  as  carrying  out  the  principle  of 
equal  rights  to  all. 

And  here  let  me  say  a  word  upon  the  difference  between 
the  present  question  and  the  ordinary  ones  that  spring  up 
among  us.  The  first  is  a  case  of  organic  law.  The  last  re- 
late to  matters  of  administration.  By  organic  law  I  mean 
that  rule  by  which  the  society,  of  which  we  are  all  members, 
is  kept  together,  and  without  which  we  should  all  fly  apart. 
By  administration  I  mean  only  the  way  by  which  the  in- 
terests of  that  society,  after  it  has  been  created,  are  well  or  ill 
managed.  The  two  processes  may  be  tolerably  well  illus- 
trated by  the  example  of  a  watch.  The  spring,  and  wheels, 
and  screws,  and  pins,  and  case,  are  all  separate  pieces,  which 
must  be  brought  together,  and  fitted,  each  in  its  proper  place, 
before  the  machine  of  which  they  are  compounded  can  be 
called  a  watch.  The  process  of  composition  may  be  called 
the  organic  law.  It  can  be  properlj-  done  only  by  following 
one  rule,  which  is  to  make  the  parts  produce  a  true  measure 
of  time.  And  about  the  greater  or  less  excellence  of  the  work 
there  can  be  little  room  for  opposition  of  sentiment,  since 
there  can  be  but  one  test,  and  but  one  way  of  applying  it. 
But  when  once  made,  a  very  different  set  of  persons  may 
come  in  and  successively  take  possession  of  the  watch,  wind 
it,  and  regulate  it,  and  set  it,  and  a  great  difference  of  opinion 
may  naturally  spring  up  among  them  as  to  who  can  keep  it 
most  exactly  to  show  the  passage  of  time.  This  is  adminis- 
tration. In  the  one  case,  parties  cannot  or  ought  not  to  exist. 
In  the  other,  they  have  a  fair  and  legitimate  field  of  exercise. 
A  very  good  watch  may  be  very  ill  taken  care  of.  Just  so  a 
very  good  form  of  government  may  be  very  badly  directed. 
In  such  a  case,  the  remedy  is  to  change  the  possession  into 
more  careful  or  competent  hands.  But  a  watch  badly  put 
together,  with  an  unsuitable  spring,  ill-fitted  wheels,  and  in- 
sufficient chains  and  screws,  will  never  keep  time,  let  the 
fidelity  of  the  possessors  be  as  perfect  as  it  may,  or  let  them 


238  THE    OLD    CONSTITUTION. 

be  changed  ever  so  often.  Just  so  is  it  with  an  ill-constructed 
government,  which  will  never  satisfy  the  people,  let  the  man- 
agers of  it  be  as  competent  as  they  may.  Hence  it  follows, 
that  the  true  wisdom  consists  in  seeing  that  the  thing  is  made 
right  at  first ;  and  that  no  temporary  passions  or  secondary 
motives  be  permitted  to  slip  into  the  construction  of  a  work, 
which,  once  in,  cannot  be  again  put  out,  and  the  action  of 
which  may  tend  to  bring  the  whole  system  into  public  odium 
or  contempt. 

The  Constitution  of  Massachusetts  was  adopted  in  the 
midst  of  the  Revolutionary  war.  It  was  based  upon  princi- 
ples which  have  stood  the  test  of  time ;  and  its  action  proved 
so  satisfactory  to  the  generation  that  established  it,  that  fifteen 
years  afterwards,  when  a  chance  was  left  open  for  them  to 
change  it,  they  refused  to  do  so.  Twenty-five  years  later,  the 
separation  of  the  District  of  Maine  rendered  a  modification  of 
form  absolutely  necessary,  and  a  convention  was  assembled 
to  prepare  it.  That  body  proposed  a  few  changes  to  the  peo- 
ple, and  such  as  in  no  way  impaired  or  conflicted  with  the 
principles  of  the  old  instrument.  Yet  even  of  these,  the  ma- 
jority adopted  only  a  part,  and  rejected  some  of  the  most  ma- 
terial. They  acted  calmly,  and  under  no  heat  or  party  pas- 
sion. Since  that  time,  other  amendments  have  been  adopted 
upon  the  recommendation  of  the  Legislature,  and  these  must 
be  admitted  to  have  dojie  something  to  change  the  consis- 
tency of  the  organic  law.  But  we  now  have  a  much  more 
general  and  extensive  alteration  proposed  to  us.  Neither  is  it 
presented,  as  it  was  before,  in  parts  that  may  be  separated. 
We  must  take  them  as  a  whole,  or  none.  I  refer  to  the  first 
and  comprehensive  proposition.  The  question  here  for  us  to 
settle  in  our  minds  is,  whether  it  is  on  the  whole  good  enough 
to  justify  us  in  voting  for  the  entire  change. 

For  my  part,  I  have  labored  to  regard  the  matter  calmly  in 
all  its  parts.  I  perceive  some  things  which  are  improvements  ; 
some  which  scarcely  deserve  the  name ;  some  which  appear 
to  me  the  direct  opposite.  On  comparing  them  all  together, 
I  have  been  reluctantly  compelled  to  decide,  that  the  ill  over- 
balances the  good,  and  that,  being  obliged  to  act  upon  all  to- 
gether, it  is  wiser  and  more  safe  to  wash  my  hands  of  the 


THE    NEW    CONSTITUTION.  239 

whole  by  voting  against  it,  thus  losing  the  good,  than  by  ac- 
cepting it  to  run  the  risk  of  admitting  with  that  good  a  more 
than  compensating  evil. 

Let  me  now  state  in  brief  my  objections. 

1.  The  first  Constitution  is  a  consistent  whole.  Its  premises 
and  its  conclusions  agree  as  well  as  the  nature  of  things  will 
admit.  The  details  are  legitimate  deductions  from  the  princi- 
ples enunciated.  There  is  neither  incoherence  nor  inconsis- 
tency in  all  its  main  elements.  In  other  words,  the  watch 
was  well  put  together.  I  object  to  the  substitute  now  pro- 
posed, because  the  new  parts  are  often  inconsistent  with  the 
old,  and  sometimes  with  one  another.  There  is  no  ruling 
idea  presented  by  them,  and  least  of  all,  that  which  has  been 
claimed,  the  idea  of  advance  and  progress.  Nothing  has  been 
perfected.  No  change  proposed  is  effectively  carried  out; 
some  are  left  to  be  done  hereafter  by  others,  less  likely  to  be 
competent. 

2.  A  total  failure  to  apply  any  adequate  remedy  to  that 
particular  evil  which  occasioned  the  calling  of  the  Convention 
at  all.  I  allude  to  the  inequality  of  the  representation.  If,  in 
the  scales  of  a  balance,  three  pounds  are  placed  in  one,  and 
one  pound  in  the  other,  it  will  scarcely  be  considered  as  set- 
ting them  even  to  add  four  pounds  to  that  which  had  one. 
The  only  difference  is,  that  the  same  excess  of  weight  has  been 
shifted  from  one  side  to  the  other. 

3.  My  third  objection  is,  that  certain  evils  are  perpetuated 
which  ought  to  have  been  remedied  by  the  Convention,  and 
which  are  more  likely  to  be  finally  corrected  by  rejecting  than 
accepting  the  amendment. 

It  would  take  far  more  time  than  I  have  to  spare,  to  enlarge 
upon  all  these  points  in  their  order.  I  propose  to  confine 
myself  to  one  of  them  as  my  main  topic,  and  to  touch  upon 
others  incidentally  before  I  conclude. 

I  object  to  the  Constitution  because  it  contains  in  the 
clauses  respecting  representation  a  gross  practical  contradic- 
tion. Whilst  in  the  premises  it  assumes  to  proceed  on  the" 
basis  of  equality,  in  the  conclusion  it  establishes  a  greater 
degree  of  inequality  than  ever.  Let  us  look  at  the  lan- 
guage. 


240  CLAIM    OF    EQUALITY. 

The  first  article  in  the  third  chapter  of  the  proposed  Consti- 
tution reads  thus :  — 

"  There  shall  be,  in  the  Legislature  of  this  Commonwealth,  a  repre- 
sentation of  the  people,  annually  elected,  and  founded  upon  the  prin- 
ciple of  equality." 

You  will  all  note  the  words  ^^  founded  vpon  the  principle  of 
equality."  The  second  article  gives  the  conclusion  designed 
to  correspond  to  the  premises :  — 

"  And  in  order  to  provide  for  a  representation  of  the  citizens  of  this 
Commonwealth,  founded  upon  the  principle  of  equality,  every  corpo- 
rate town,  containing  less  than  1,000  inhabitants,  may  elect  one  repre- 
sentative in  the  year  when  the  valuation  of  estates  shall  be  settled,  and, 
in  addition  thereto,  one  representative  five  years  in  every  ten  years. 
Every  town  containing  1,000  inhabitants  and  less  than  4,000,  may 
elect  one  representative.  Eveiy  town  containing  4,000  inhabitants 
and  less  than  8,000,  may  elect  two  representatives.  Every  town  con- 
taining 8,000  inhabitants  and  less  than  12,000,  may  elect  three  repre- 
sentatives. Every  city  or  town  containing  12,000  inhabitants,  may 
elect  four  representatives.  Every  city  or  town  containing  over  12,000 
inhabitants,  may  elect  one  additional  representative  for  every  4,000 
inhabitants  it  shall  contain  over  12,000.  Any  two  towns,  each  con- 
taining less  than  1,000  inhabitants,  may,  by  consent  of  a  majority  of 
the  legal  voters  present  at  a  legal  meeting,  in  each  of  said  towns 
respectively,  called  for  that  purpose,  form  themselves  into  a  represent- 
ative district,  to  continue  for  the  term  of  not  less  than  two  years  ;  and 
such  district  shall  have  all  the  rights,  in  regard  to  representation, 
which  belong  to  a  town  having  1,000  inhabitants.  And  this  appor- 
tionment shall  be  based  upon  the  census  of  the  year  1850,  until  a  new 
census  shall  be  taken." 

Now  I  pray  you  to  compare  this  claim  of  equality  with 
some  of  the  statements  I  propose  to  submit  of  the  practical 
operation  of  the  plan. 

The  town  of  Hull  has  a  population  of  262  souls,  and  it  has 
38  voters.     It  is  allowed  six  representatives  in  ten  years. 

The  town  of  Hingham,  close  alongside,  has  a  population  of 
.3,962  souls,  and  it  has  866  voters.  It  is  allowed  ten  repre- 
sentatives in  ten  years. 

Every  soul  in  Hull  has  a  degree  of  political  weight  equal  to 
about  10§  of  the  men,  women,  and  children  of  Hingham. 


EQUALITY    OF    REPRESENTATION.  241 

Every  voter  in  Hull  Is  equal  to  a  little  more  than  sixteen  of 
the  voters  of  Hingham. 

I  respectfully  ask  every  candid  man  whether  this  represen- 
tation can  fairly  be  said  to  be  "  founded  upon  the  principle  of 
equality." 

I  have  before  me  a  list  of  ten  towns,  which  is  at  the  service 
of  any  one  disposed  to  examine  it.  The  united  population  of 
these  towns  is  3,926  souls.  The  number  of  voters  in  them  is 
850.  These  ten  towns  are  allowed  sixty  representatives  in 
ten  years. 

The  single  town  of  Hingham  has  3,962  souls,  thirty-six  more 
than  the  sum  of  the  ten  towns.  It  has  866  voters,  or  thirteen 
more  voters  than  all  the  voters  of  the  ten  put  together,  and  yet 
Hingham  is  allowed  only  ten  representatives  in  ten  years. 

Of  course  the  proportionate  weight  of  Hingham  and  of 
these  towns  is  about  one  to  six. 

Can  this  be  called  a  representation  "  founded  upon  the  prin- 
ciple of  equality  "  ? 

The  ten  towns  alluded  to,  having  3,926  souls  and  853  voters, 
are  entitled  to  sixty  representatives  in  ten  years. 

I  have  before  me  a  list  of  six  towns,  at  the  service  of  any 
one  of  this  assembly,  having  22,858  souls  and  4,486  voters, 
entitled  to  just  the  same  number  of  representatives  in  ten 
years,  and  no  more. 

The  proportion  here  is  one  to  nearly  six. 

I  have  not  time  to  multiply  instances  which  are  under  my 
hand.  What  I  furnish  is  decisive  enough.  And  I  respectful- 
ly once  more  submit  it  to  the  good  sense  of  every  impartial 
mind,  whether  a  system  showing  any  one  of  these  results  de- 
serves to  be  designated  as  "  founded  upon  the  principle  of 
equality."  Does  not  the  conclusion  in  the  second  article 
monstrously  contradict  the  premises  laid  down  in  the  first? 

But  this  is  not  the  only  inconsistency.  As  if  aware  that 
the  plan  proposed  could  not  bear  the  test  of  time,  the  Con- 
vention has  appended  to  the  close  of  its  work  a  mode  of  get- 
ting rid  of  it,  in  the  year  1856.  It  directs  the  ordinary  Legisla- 
ture of  that  year  to  prepare  a  plan  of  district  representation,  to 
be  submitted  to  the  people  during  that  year,  and,  if  approved 
by  them,  to  take  the  place  of  their  own  plan.  I  propose  to 
22 


242  INEQUALITY    ADMITTED. 

consider  this  hereafter.  My  purpose  in  introducing  it  here  is 
only  to  show  the  low  estimate  which  they  themselves  put 
upon  their  work,  when  they  consent  to  see  it  swept  out  of  ex- 
istence in  three  years.  If  they  had  had  any  confidence  in  the 
basis  of  their  action,  would  not  they  have  adhered  to  it  more 
firmly  ? 

But  I  do  not  understand  that  the  gross  inequality  of  this 
plan  is  denied  in  any  quarter.  It  is  a  waste  of  time  to  enlarge 
upon  it.  In  all  of  the  intelligent  and  candid  defence  which 
has  fallen  under  my  observation,  I  perceive  two  lines  of  argu- 
ment, both  predicated  in  an  admission  of  the  fact. 
One  of  these  is  drawn  up  after  this  fashion:  — 
"  Yes,  this  system  is  unequal ;  but  then  we  wish  you  to  notice  how 
very  bad  the  old  system  is.  At. any  rate,  this  is  an  improvement  upon 
that,  and  we  must  consent  to  accept  this,  or  we  shall  get  nothing  at  all." 

Now  I  perfectly  understand  the  force  of  this  argument,  for 
it  has  been  too  often  addressed  to  my  judgment  heretofore  for 
me  readily  to  mistake  it.  In  the  present  instance  I  cannot 
give  it  weight  for  two  reasons. 

The  first  is,  that,  since  the  Convention  was  called  mainly 
for  the  purpose  of  correcting  a  gross  inequality  complained  of, 
they  should  have  corrected  it,  and  not  have  attempted  to  in- 
troduce a  new  inequality  as  a  fit  substitute  for  the  old  one. 
This  is  not  a  performance  of  the  promise.  The  Convention 
was  called  to  amend  and  to  improve,  and  not  merely  to 
change.  And  without  going  into  the  comparison  of  the  one 
system  with  the  other,  to  show  which  is  the  least  bad,  it  is 
enough  to  say,  once  for  all,  that  two  bads  do  not  make  one 
good,  —  two  wrongs  can  never  make  one  right. 

The  second  reason  is,  that  there  is  no  evidence  going  to 
prove  the  fact  which  is  assumed,  —  that  we  cannot  get  any 
improvement  in  other  ways.  I  do  not  understand  the  reason 
why  the  Legislature  cannot  at  any  time  propose  an  amend- 
ment, under  the  present  Constitution,  embracing  all  the  ideas 
suggested  for  the  use  of  that  body  in  1856  by  the  Convention. 
If  the  Legislature  is  after  all  to  do  the  work  that  was  cut  out 
for  the  Convention,  I  do  not  exactly  see  the  reason  why  it 
should  have  assembled  at  all.  I  know  very  well  the  objection 
that  will  be  made  in  some  quarters.     I  know  that  it  will  be 


MASSACHUSETTS  REPRESENTATION.  243 

said  the  Legislature  is  hampered  by  the  restriction  requiring  a 
vote  of  two  thirds  of  the  members  present,  of  two  successive 
Houses  of  Representatives,  and  that  the  opponents  of  every 
change  will  always  constitute  a  sufficient  number  to  defeat  it. 
I  will  admit  that  this  argument,  and  the  conduct  of  one  of  the 
parties  in  this  Commonwealth  in  resisting  all  amendments  in 
the  Legislature  heretofore,  had  great  weight  with  me  in  deciding 
my  vote  for  the  Convention.  I  can  only  say,  that  if  it  should 
be  repeated,  which  I  do  not  believe  will  be  the  case,  I  shall  be 
again  disposed  to  advocate  the  calling  of  a  new  Convention. 
There  can  be  no  doubt,  in  such  case,  that  before  a  great  while 
such  a  Convention  would  be  demanded. 

In  truth,  the  question  of  representation  has  been  the  great 
stumbling-block  in  the  government  of  Massachusetts  for  more 
than  a  century;  and  it  will  continue  to  be  until  the  people 
begin  to  look  a  little  deeper  than  they  have  ever  yet  done  for 
the  cause  of  the  evil.  For  myself  I  must  say  that  I  have 
heretofore  spent  no  little  time  and  thought  upon  the  subject ; 
and  I  have  come  to  some  definite  conclusions,  which  I  may  as 
well  submit  to  your  consideration  now,  as  at  any  time.  In 
order  to  do  this  clearly,  it  will  be  necessary  to  go  a  good  way 
back  into  the  history  of  the  past. 

The  representation  of  Massachusetts  is  clearly  to  be  traced 
back  to  the  principle  of  borough  representation  in  Great  Brit- 
ain, and  the  cause  of  our  difficulties  lies  in  the  attempt  which 
has  been  constantly  making  to  assimilate  that  principle  — 
which  has  not  worked  well  even  under  the  monarchical  and 
aristocratic  system  of  England,  harboring,  as  it  does,  all  sorts 
of  irregularity  —  to  the  free  institutions  and  acknowledged 
equality  of  condition  of  the  people  of  this  Commonwealth. 
There  are  many  in  America  who  have  heard  a  great  deal  of 
the  rotten  boroughs  of  the  British  Parliament,  but  who  have 
very  little  notion  of  their  nature  and  origin.  To  them  it  may 
be  cause  of  surprise  to  learn,  that  the  House  of  Commons  was 
originally  made  up  of  the  representatives  of  the  counties  of 
England,  who  formed  its  aristocracy ;  and  that  when  the 
sovereign  first  sent  out  his  writs  to  the  boroughs,  or,  in  other 
words,  the  small  towns  containing  the  mass  of  the  hard-work- 
ing and  industrious  people,  requiring  each  of  them  to  send 


244  PLACES  REPRESENTED,  NOT  PEOPLE. 

two  members  to  his  Parliament,  this  was  regarded  as  an  ap- 
peal to  the  popular  feeling  in  order  to  protect  him  from  the 
aristocracy  and  to  get  more  liberal  grants  of  the  people's 
money.  The  inducement  presented  was  the  right  of  represen- 
tation ;  but  so  little  was  it  felt  as  a  privilege,  that  many  of  the 
towns  endeavored  to  avoid  the  distinction  of  a  call.  Some 
actually  succeeded  in  persuading  the  sheriffs  not  to  include 
them  in  their  returns.  And  hence  the  first  cause  of  inequal- 
ity ;  for  by  this  act  some  places  lost  their  representation  alto- 
gether. Even  of  those  which  preserved  it,  many  regarded 
themselves  as  liable  to  a  burden,  rather  than  enjoying  a  right. 
They  sent  two  representatives,  it  is  true,  but  they  were 
obliged  to  pay  them  from  their  own  resources.  Even  the  two 
shillings  sterling  paid  per  day  to  their  members,  when  the 
county  members  were  allowed  four,  were  considered  as  pay- 
ing too  high  for  having  the  borough's  interests  cared  for  by  its 
own  members.  Yet  it  was  the  representatives  of  these  very 
boroughs  who  first  combined  the  elements  of  the  popular  fea- 
tures of  the  British  Constitution,  and  it  was  to  them  that  our 
ancestors,  when  they  first  came  to  these  shores,  were  in  the 
habit  of  looking  for  the  great  nurseries  of  the  principles  which 
drove  them  over  here.  It  was  still  the  popular  feature  of  the 
Constitution,  although  even  then  the  natural  changes  going 
on  in  the  population  of  the  respective  towns  were  beginning 
to  produce  the  consequences  of  a  later  time.  By  reason  of 
attaching  the  right  of  representation  to  the  place,  and  not  to 
those  who  lived  in  the  place,  in  the  course  of  years  it  turned 
out  that  an  old  stone  wall  continued  to  be  entitled  to  send 
two  members  of  Parliament,  whilst  seventy  or  eighty  thou- 
sand inhabitants,  who  had  grown  into  a  modern  town,  were 
not  entitled  to  one.  This  evil  consequence,  I  say,  followed 
the  mistake  of  attaching  representation  to  a  towfi,  and  not  to 
those  who  live  in  the  town. 

Our  ancestors  were,  most  of  them,  drawn  from  the  middling 
and  poorer  classes  of  the  mother  country  who  lived  in  towns. 
When  they  came  out  to  Massachusetts,  they  came  under  the 
protection  of  a  charter  designed  to  create  a  commercial  com- 
pany, and  not  a  political  state.  No  provision  was  made  in  it 
for  any  assemblies  other  than  those  of  the  members  of  the 


BOROUGH    REPRESENTATION.  245 

company,  which,  like  the  meetings  of  the  famous  East  India 
Company,  were  Ijnown  as  the  meetings  of  the  General  Court, 
in  which  they  all  had  a  right  to  participate.  But  after  the 
step  was  cnce  taken  of  transferring  the  charter  to  Massachu- 
setts, the  sparse  settlements,  and  the  difficulty  of  getting  from 
place  to  place,  soon  rendered  the  assembling  of  all  the  mem- 
bers to  do  the  common  business  inconvenient,  if  not  impracti- 
cable. Hence  sprung  the  idea  of  representation.  No  such 
thing  is  mentioned  in  the  charter ;  but  our  ancestors,  when 
forced  to  entertain  it,  very  naturally  looked  at  home  in  Eng- 
land for  the  precedents  that  were  most  familiar  to  them  there, 
and  they  consequently  created  a  representation  of  towns.  By 
an  act  passed  so  early  as  1636,  — 

"  It  is  ordered^  That  henceforth  it  shall  be  lawful  for  the  freemen 
of  every  town  to  choose  (by  papers)  deputies  for  the  General  Court, 
provided  that  no  town  shall  send  more  than  two  deputies,  and  no  town 
that  hath  not  to  the  number  of  twenty  freemen  shall  send  more  than 
one  deputy,  and  such  plantations  as  have  not  ten  freemen  shall  send 
none,  but  such  freemen  may  vote  with  the  next  town,  in  the  choice  of 
their  deputies,  till  this  Court  take  further  order." 

Here  may  be  perceived  the  similarity  to  borough  represen- 
tation in  England,  as  well  in  the  distinction  drawn  between 
the  right  attached  to  towns,  as  distinct  from  plantations  which 
had  none,  as  in  the  limitation  to  two  members  and  no  more. 
At  the  same  time,  the  idea  of  the  burden  attached  to  the  right 
so  far  continued,  as  that  in  all  towns,  not  having  more  than 
thirty  freemen,  the  matter  of  sending  or  not  sending  a  deputy 
was  left  optional  with  them. 

The  germ  of  town  representation  in  this  Commonwealth  is 
to  be  found  in  this  law  of  1636,  and  it  is  clearly  wrapt  up  in 
the  kernel  of  borough  representation  in  the  mother  country. 

Time  passed  on  ;  the  first  charter  was  annulled  by  the 
powers  at  home,  and  the  new  one  granted  by  William  and 
Mary,  in  1691,  contained  a  clause  directing  the  General  Court 
of  the  Province  to  consist  of  "  the  Governor  and  Council,  and 
such  freeholders  as  shall  be  elected  by  the  major  part  of  the 
freeholders  and  other  inhabitants  of  the  respective  towns  or 
places  who  shall  be  present  at  such  elections;  each  of  the  said 
22* 


246  FALSE    SYSTEM    OF    1692. 

towns  and  places  being  hereby  empowered  to  elect  and  depute 
two  persons  and  no  more^''  &cc.  At  the  same  time,  it  gave  the 
next  General  Court  power  to  regulate  further  the  representa- 
tion. This  power  was  exercised  by  an  act  passed  the  next 
year.  By  it  "  every  town  consisting  of  the  number  of  forty 
freeholders,  and  other  inhabitants  qualified  by  charter  to  elect, 
shall  send  one  freeholder  as  their  representative,"  —  every  town 
consisting  of  one  hundred  and  twenty  freeholders,  &c.  might 
send  two  representatives,  —  each  town  having  less  than  forty 
freeholders  and  more  than  thirty,  might  send  one  representa- 
tive or  not,  as  it  pleased,  —  and  towns  having  less  than  thirty 
might  send  one,  or  join  with  the  next  towns,  they  paying  a 
proportionable  part  of  the  expense.  No  town  could  send 
more  than  two,  excepting  Boston,  which  could  send  four. 

Here,  again,  it  is  easy  to  trace  the  models  of  the  borough 
system  of  Great  Britain.  Here  the  representation  was  of 
towns,  and  not  of  persons ;  it  was  limited  not  to  exceed  two 
representatives,  without  regard  to  inequality  in  the  excess 
of  numbers  in  the  respective  towns  over  one  hundred  and 
twenty  freeholders,  excepting  only  the  case  of  Boston,  which, 
like  the  capital  at  home,  London,  was  entitled  to  four  mem- 
bers, and  each  town  paid  the  expenses  of  its  own  represent- 
atives. 

Such  was  the  system  as  established  in  1692  ;  but  the  natu- 
ral consequence  of  making  corporate  towns  stand  for  men  and 
women  was  not  slow  to  show  itself.  Some  towns  prospered 
very  much,  whilst  others  went  backward  and  withered  away. 
The  people,  however,  who  removed  from  the  one  to  the  other, 
carried  with  them  none  of  their  rights  of  representation. 
These  remained  fixed  to  the  houses  and  trees  known 
under  the  name  o^  the  town  they  left.  That  to  which 
they  came  gained  their  industry,  it  is  true,  but  it  gained  no 
political  power  by  the  transfer.  The  arithmetic  of  corporate 
rights,  which  started  by  calling  one  hundred  and  twenty  equal 
to  one  hundred  and  twenty,  was  not  the  less  positive  that  it 
was  right,  when  it  came  to  cipher  out  four  hundred  and  eighty 
to  be  equal  to  one  hundred  and  twenty,  and  therefore  to  be 
equally  represented  by  two  members. 

But  with  the  dawn  of  the  year  1776  there  came  new  ideas ; 


SYSTEM    CHANGED,    1776-1780.  247 

and  the   General   Court  of  that  year  began  a  law  in  these 
words :  — 

"  Whereas,  The  present  representation  of  this  Colony  is  not  so 
equal  as  it  ought  to  be,  and  this  Court  being  desirous  to  have  the  same 
as  proportionate  as  it  can  in  the  present  state  of  the  Colony  be  made,  — 

"  Be  it  enacted,  &-c..  That  each  town  containing  two  hundred  and 
twenty  freeholders,  «Sfc.  shall  at  all  times  have  the  privilege  of  sending 
three  members  to  represent  them,  and  those  which  have  three  hun- 
dred and  twenty,  &c.  may  send  four,  and  in  that  proportion  for  any 
greater  number  of  freeholders." 

This  was  the  first  endeavor  to  change  the  basis  by  engraft- 
ing the  rule  of  numbers  upon  that  of  corporate  representation. 
It  lasted  but  a  short  time,  because  a  new  instrument  of  gov- 
ernment was  framed  in  1780,  only  four  years  later,  which  is 
the  Constitution  under  which  we  still  live.  To  that,  as  it 
first  stood,  I  beg  now  very  briefly  to  call  your  attention. 

The  first  article  says :  — 

"  There  shall  be,  in  the  Legislature  of  this  Commonwealth,  a  repre- 
sentation of  the  people  annually  elected,  and  founded  upon  the  prin- 
ciple of  equality." 

Undoubtedly  this  meant  that  all  the  representatives  should 
be  elected  every  year.  It  did  not  mean  any  thing  like  what 
has  been  since  adopted,  a  representation  for  one,  two,  three, 
four,  or  more  years  out  of  ten,  and  none  at  all  for  the  other 
years. 

The  second  article  says :  — 

"  And  in  order  to  provide  for  a  representation  of  the  citizens  of  this 
Commonwealth,  founded  upon  the  principle  of  equality,  every  corpo- 
rate town  containing  150  ratable  polls  may  elect  one  representative ; 
every  corporate  town  containing  375  ratable  polls  may  elect  two 
representatives ;  every  corporate  town  containing  600  ratable  polls 
may  elect  three  representatives ;  and  proceeding  in  that  manner, 
making  225  ratable  polls  the  mean  increasing  number  for  every 
additional  representative. 

'"'■Provided,  nevertheless,  that  each  town  now  incorporated,  not 
having  150  ratable  polls,  may  elect  one  representative  ;  but  no  place 
shall  hereafter  be  incorporated  with  the  privilege  of  electing  a  repre- 
sentative, unless  there  are  within  the  same  150  ratable  polls. 


248  STILL    TOWNS,    NOT    PEOPLE. 

"  And  the  House  of  Representatives  shall  have  power,  from  time  to 
time,  to  impose  fines  upon  such  towns  as  shall  neglect  to  choose  and 
return  members  to  the  same,  agreeable  to  this  Constitution. 

"  The  expenses  of  travelling  to  the  General  Assembly,  and  returning 
home,  once  in  every  session,  and  no  more,  shall  be  paid  by  the  govern- 
ment, out  of  the  public  treasury,  to  every  member  who  shall  attend  as 
seasonably  as  he  can  in  the  judgment  of  the  House,  and  does  not 
depart  without  leave." 

Here  it  should  be  noticed  that  the  idea  of  representation  is 
once  more  made  to  attach  to  towns  as  corporations,  and  an 
attempt  is  made  to  engraft  on  it  a  scale  of  increase  according 
to  numbers.  The  sending  or  not  sending  was  a  voluntary  act 
on  the  part  of  the  town  ;  and  the  person  so  sent  as  representa- 
tive was  to  be  compensated  by  the  town,  and  not  by  the  Com- 
monwealth. 

Here  again  peeps  forth  the  origin  of  Massachusetts  repre- 
sentation in  the  old  boroughs  of  the  mother  country.  They 
paid  their  representatives.  So  did  our  towns.  They  often 
tried  to  avoid  and  escape  the  charges  of  supporting  any 
by  omitting  to  send  them.  So  did  our  towns.  They  were 
threatened  with -penalties  for  their  dereliction.  So  power  is 
given  to  the  General  Court  to  impose  fines  upon  towns  which 
neglect  to  send  representatives.  The  leading  and  preponder- 
ating idea  still  remained  as  before,  representation  of  corporate 
towns,  and  not  of  persons.  Every  corporate  town  was  entitled 
to  send,  no  matter  what  its  numbers.  The  equilibrium  was 
restored  by  establishing  a  certain  proportion  between  the  num- 
bers and  representatives  peculiar  to  each.  The  system  thus 
established  was  not  inconsistent  with  the  declaration  by  which 
it  was  introduced,  but  it  was  not  made  to  survive  the  necessity 
that  occasioned  it.  As  a  piece  of  workmanship,  it  is  far  more 
coherent  and  consistent  than  any  thing  which  preceded  or  has 
followed  it,  but  time  and  the  multiplication  of  numbers  made 
action  under  it  cumbrous  and  inconvenient. 

It  is  unnecessary  for  me  to  go  into  any  further  detail  respect- 
ing the  amendments  since  made.  The  Convention  of  1820 
proposed  one,  but  it  was  rejected  by  the  people.  A  great 
change  took  place  when  the  payment  of  the  compensation  to 
the  delegate  was  transferred  from  the  town  to  the  Common- 


.      ROTTEN-BOROUGH    SYSTEM.  249 

wealth.  He  ceased  to  be  the  representative  exclusively  of  his 
own  town,  and  became  more  that  of  the  Commonwealth  at 
large.  His  presence,  too,  became  a  matter  of  much  more 
consequence  to  the  interests  of  all  the  other  towns.  For  each 
of  them  is  of  course  liable  for  its  share  of  the  general  burdens, 
and  if  each  of  the  small  towns  obtains  more  than  its  propor- 
tion of  representation,  the  expense  does  not  fall  upon  them, 
but  upon  the  large  towns.  Hence  arises  one  of  the  great 
features  of  inequality  and  injustice  in  the  present  amendment. 
The  small  towns  not  only  gain  an  undue  share  of  power  over 
the  expenditures  of  the  government,  but  the  large  towns  pay 
both  the  burdens  imposed  by  them  and  the  expenses  of  those 
who  are  sent  to  impose  them ! 

The  inconsistency  of  all  the  amendments  of  the  present  age 
consists  in  this,  that  they  rest  upon  no  principle.  They  do  not 
follow  the  representation  of  towns,  because  they  disfranchise 
them  without  scruple  a  large  part  of  the  time.  They  do  not 
follow  the  only  democratic  rule,  that  of  numbers,  because,  for 
certain  purposes,  they  acknowledge  and  establish  an  equality 
between  unequal  numbers  in  towns.  In  this  regard  I  think 
the  proposed  amendment  which  we  are  now  considering  is 
worse,  rather  than  better,  than  its  predecessors.  Whilst  it 
does  not  carry  out  consistently  the  corporate  rights  of  towns, 
it  goes  a  great  way  to  aggravate  and  extend  the  inequality  of 
numbers,  by  enormously  enlarging  the  franchise  of  the  smallest 
of  them.  Instead  of  going  forward,  it  goes  straight  backward 
to  the  borough  system,  and  leaves  an  opening  for  the  first 
time  to  what  has  happened  in  England,  the  influence  of  de- 
cayed boroughs.  By  the  existing  Constitution,  ten  small 
towns  which  I  can  name,  although  enjoying  a  far  greater  priv- 
ilege than  their  numbers  could  claim,  yet  have  but  twenty-five 
representatives  in  ten  years.  By  the  proposed  plan  the  same 
towns  are  to  be  entitled  to  sixty,  and  that  in  spite  of  the  fact 
that  they  are  mostly  towns  in  which  the  numbers  are  dimin- 
ishing. But  this  diminution  is  not  to  make  any  difference. 
They  may  continue  to  send  representatives  until  the  popula- 
tion diminishes  to  fifty  souls  or  less,  and  the  voters  to  five  or  six. 
Now  I  do  not  see  how  this  differs  in  any  substantial  respect 
from  what  is  denominated  the  rotten-borough  system  of  the 


250  ROTTEN-BOROUGH    SYSTEM. 

mother  country.  By  rotten  boroughs  I  understand  to  be  meant 
nothing  more  than  towns  which  once  had  a  population  en- 
titling them  to  be  represented  in  Parliament ;  but  in  the  course 
of  time  and  the  changes  of  occupation,  the  people  have  removed 
or  died  out,  until  so  few  of  them  are  left,  that  some  one  wealthy 
man  has  it  in  his  power  to  control  their  votes  through  his 
money,  and  to  nominate  whom  he  chooses  for  them  to  elect 
as  members  of  Parliament.  If  it  become  an  object  to  wealthy 
and  ambitious  men  in  Boston  to  get  the  control  of  State  in- 
fluence, I  do  not  see  why  they  could  not  very  easily  acquire 
the  same  kind  of  power  in  some  of  these  small  towns.  In 
Hull,  for  example,  there  are  but  thirty-eight  voters,  few  of 
them  very  much  above  the  world  in  their  circumstances.  Of 
these,  twenty  would  control  the  nomination  of  a  representa- 
tive six  years  in  ten.  What  would  be  easier  than  to  buy  out 
two  or  three  of  the  largest  landholders  at  a  good  price,  and 
to  put  in  their  places  tenants  of  the  right  way  of  thinking? 
There  would  be  no  bribery,  or  corruption,  or  wrong,  or  injus- 
tice in  this  process ;  nothing  which  would  not  be  perfectly 
fair;  and  yet  such  a  result  would  just  as  much  make  a  nom- 
ination borough,  as  if  it  had  been  brought  about  in  Bramton, 
in  England,  a  place  of  about  as  many  voters  before  the  days 
of  the  Reform  Bill. 

Neither  let  it  be  supposed  that  the  numbers  residing  in  the 
small  towns  constitute  any  distinction  in  our  favor.  We 
know  from  experience,  that  these  numbers  are  diminishing 
regularly  at  every  census.  But  even  as  they  are,  you  will  be 
surprised  to  learn  that  they  fall  below  many  of  the  boroughs 
that  were  disfranchised  by  the  Reform  Bill.  I  have  taken  the 
pains  to  add  up  the  number  of  voters  in  ten  of  the  small 
towns.  They  make  867,  or  an  average  of  86y\y  for  each.  I 
have  compared  it  with  the  lowest  estimates  I  find  of  the 
number  of  voters  in  the  fifty-six  boroughs  which  the  British 
Parliament  abolished.  Their  population  is  in  many  of  the 
cases  much  larger.  These  fifty-six  boroughs  gave  4,293  votes, 
or  an  average  of  76|  to  each.  Now  the  difference  between 
our  progress  and  that  of  Great  Britain  is,  that,  whilst  the//  are 
entirely  destroying  the  separate  representation  of  these  bor- 
oughs, we  are  enlarging  and  extending  and  confirming  the 
rights  of  corporations  of  the  same  kind. 


INEQUALITY.  251 

Democracy,  according  to  my  idea,  consists  of  equal  rights 
to  all  men  under  the  law,  as  nearly  as  human  imperfection 
will  allow.  Now  I  find  no  fault  with  others  for  judging  dif- 
ferently, but  it  is  not  consistent  with  my  notions  to  give  a 
moment's  sanction  to  a  measure  like  this,  so  opposed  as  it 
seems  to  me  to  every  notion  of  equality.  Neither,  on  this 
point,  does  it  seem  that  those  who  talk  the  most  loudly  of 
progress  among  us,  act  in  any  reasonable  degree  consistently 
with  their  declarations.  I  have  not  found  the  inequality  of 
the  system  anywhere  denied,  even  by  its  warmest  friends. 
Mr.  Boutwell,  the  chief  pillar  of  the  whole  scheme,  and  a  gen- 
tleman for  whose  attainments  and  character  I  have  great  re- 
spect, began  his  speech  in  the  Convention  in  defence  of  it,  by 
saying,  "  I  rise,  sir,  as  a  conservative^  an  unusual  character  for 
me."  That  meant  to  say,  of  course,  that  he  was  for  this  time 
going  counter  to  his  usual  democratic  ideas.  And  my  excel- 
lent friend,  R.  H.  Dana,  Jr.,  than  w^hom  I  know  no  clearer- 
headed,  as  well  as  no  better  and  purer  man  in  this  community, 
suddenly  found  himself  acting  as  the  mouthpiece  of  the  party 
of  progress,  at  the  very  moment  when  he  was  the  most  con- 
sistently enunciating  the  conservative  principles  which  mark 
his  mind  and  character.  Knowing  the  man  as  I  do,  his  speech 
gave  me  great  pleasure ;  but  I  could  not  help  thinking  that 
it  would  have  done  honor  to  Lord  Lyndhurst,  if  he  had  deliv- 
ered it  in  his  contest  with  the  Reform  Bill  of  Great  Britain,  in 
the  House  of  Lords.  It  certainly  did  not  express  my  views, 
still  less  the  established  doctrines  of  the  progressive  party.  It 
defended  the  principle  of  inequality.  It  justified  the  discrimi- 
nation against  the  large  towns.  Now  I  maintain,  that  the 
moment  a  majority  in  a  republic  assumes  to  draw  a  distinc- 
tion with  the  intent  that  certain  men  shall  be  enabled  to  enjoy 
twice  or  thrice  the  amount  of  political  power  which  an  equal 
number  of  other  men  are  to  possess,  that  is  the  hour  when  tyr- 
anny begins.  The  fact  that  my  good  friend  was  sailing  in 
the  van  of  the  so-called  progressive  squadron  of  the  Conven- 
tion upon  this  occasion,  was  certainly  owing  to  no  deviation 
of  his  from  his  established  course.  How  the  democratic  fleet 
came  to  be  under  his  lee  is  another  question.  And  that  ques- 
tion is  answered  by  one  of  their  most  skilful  leaders,  Mr. 


252  CHARLES    SUMNER. 

Boutwell,  in  his  admission  that  they  were  playing  the  part  of 
conservatives.  But  conservatives  of  what  ?  Why,  conserva- 
tives of  established  abuses  of  the  democratic  principle  of  equal 
rights  for  all ! 

The  truth  is,  that,  if  we  are  really  in  earnest  in  bringing 
about  a  reform  of  this  much  vexed  matter,  we  must  go  deeper 
than  we  have  yet  done.  We  must  take  the  great  principle  of 
democratic  equality  of  numbers  as  our  guiding  star,  and  pro- 
ceed without  hesitation  wherever  it  may  lead.  With  it,  we 
must  divide  the  large  towns  and  aggregate  the  small.  After 
the  most  deliberate  examination  I  have  been  able  to  give  to 
the  subject,  and  that  not  lately,  I  am  convinced  that  nothing 
else  will  permanently  content  the  great  body  of  the  citizens 
of  Massachusetts.  The  present  plan,  if  adopted,  will  only 
share  the  fate  of  its  predecessors.  It  remedies  no  existing 
evil. 

And  here  let  me  remark,  that  there  was  one  man  in  that 
Convention  who  saw  the  thing  as  I  see  it,  and  who  had  the 
firmness  to  come  out  with  a  full  declaration  of  his  sentiments. 
The  speech  of  my  honored  friend,  Charles  Sumner,  was  not 
answered  in  that  body.  It  has  never  been  answered  since.  I 
do  not  believe  it  can  be  answered.  But  I  must  be  permitted 
to  say,  that  he  tacked  to  it  an  unworthy  conclusion.  He  lis- 
tened to  the  siren  song  of  expediency,  coming  from  some 
friends  who  told  him  that  ruin  to  their  hopes  would  follow 
from  their  striking  into  the  path  of  right.  And  he  bowed  his 
neck  to  the  iron  rod  of  party,  at  least  in  his  action,  if  not  in 
his  sentiments  and  words.  But  had  he  and  I,  in  the  year  1848, 
listened  to  the  same  song,  sung  quite  as  skilfully  by  our  then 
political  friends,  should  we  not  since  have  been  hunting  in  the 
pack  led  by  General  Zachary  Taylor,  and  be  now  singing  ho- 
sannas  to  the  perfections  of  the  Fugitive  Slave  Law?  When 
our  enemies  reproached  us  with  placing  conscience  before 
every  other  consideration,  we  gave  a  pledge  to  them  which 
at  any  cost  I  am  determined  to  redeem.  I  will  not  vote  for  a 
fundamental  measure  which  I  think  bad,  because  some  men 
who  study  the  course  of  popular  opinion  more  than  I  do  de- 
clare that  to  do  otherwise  will  be  injurious  to  the  interests  of 
the  party. 


ALTERNATIVE    PROPOSED.  253 

But  I  am  well  aware  of  the  argument  that  is  considered  as 
meeting  all  this  difficulty.  It  is  said,  that,  admitting  all  that 
I  say  to  be  true,  a  remedy  is  yet  presented  by  the  last  article 
added  to  the  proposed  Constitution,  which  provides :  — 

"  The  Legislature,  which  shall  be  chosen  at  the  general  election  on 
the  Tuesday  next  after  the  first  Monday  in  November,  in  the  year 
1855,  shall  divide  the  State  into  forty  single  districts  for  the  choice  of 
Senators,  such  districts  to  be  of  contiguous  territory,  and  as  nearly 
equal  as  may  be  in  the  number  of  qualified  voters  resident  in  each  ; 
and  shall  also  divide  the  State  into  single  or  double  districts,  to  be  of 
contiguous  territory,  and  as  nearly  equal  as  may  be  in  the  number  of 
qualified  voters  resident  in  each,  for  the  choice  of  not  less  than  two  hun- 
dred and  forty,  nor  more  than  three  hundred  and  twenty  representa- 
tives; with  proper  provisions  for  districting  the  Commonwealth  as 
aforesaid,  in  the  year  1856,  and  every  tenth  year  thereafter ;  and  with 
all  other  provisions  necessary  for  carrying  such  system  of  districts  into 
operation  ;  and  shall  submit  the  same  to  the  people  at  the  general  elec- 
tion to  be  held  in  the  year  1856,  for  their  ratification  ;  and  if  the  same 
shall  be  ratified  and  adopted  by  the  people,  it  shall  become  a  part  of 
this  Constitution,  in  place  of  the  provisions  contained  in  this  Constitu- 
tion for  the  apportionment  of  Senators  and  Representatives." 

Here,  they  say,  is  the  very  system  which  I  consider  the 
best.      Why  am  I  not  content  ? 

The  answer  is  plain.  The  duty  of  preparing  this  amend- 
ment will  devolve  upon  a  Legislature  filled  with  the  spirit  of 
party.  The  clause  of  the  Constitution  now  proposed  to  be 
adopted  will,  if  it  goes  into  effect,  have  filled  the  House  with 
a  majority  on  one  side  or  the  other.  I  care  not  which,  — 
Whig,  Democrat,  or  Free  Soil.  The  working  of  the  amend- 
ment will  secure  for  it  the  affections  of  that  majority  which  it 
puts  into  power.  I  ask,  what  sort  of  a  tribunal  is  this  before 
which  to  go,  and  solicit  a  districting  bill,  the  effect  of  which 
may  be  to  dethrone  them  ?  They  know  that,  if  the  districting 
bill  fails  of  ratification,  then  the  system  on  which  they  stand, 
small  towns  and  all,  is  to  remain  for  ever.  What  can  be  more 
easy,  under  shrewd  management,  than  to  propose  a  very  fair 
bill,  which  would  yet  be  almost  sure  to  fail  of  ratification  ? 
All  this  may  be  done  in  good  faith,  by  those  who  have  no 
confidence  in  a  districting  bill,  and  the  consequence  will  be 
23 


254  ALTERNATIVE    DELUSIVE. 

the  establishment  of  this  rule  of  inequalities,  until  a  new  agi- 
tation shall  make  it  necessary  to  summon  a  new  Convention. 
Some  of  the  leading  friends  of  the  Constitution  do  not  pre- 
tend to  anticipate  any  other  result.  Mr.  Boutwell,  in  his 
speech  at  Berlin,  uses  the  following  language  respecting  it:  — 

"  While,  then,  a  majority  of  the  Convention  did  not  agree  to  the  dis- 
trict system,  they  did  agree  that  it  is  the  right  of  the  people  to  decide 
the  question  for  themselves,  and  it  is  now  in  their  power  to  establish 
that  system  without  any  cost  whatever. 

"  I  submit  to  the  friends  of  the  district  system,  that  it  is  the  part  of 
wisdom  and  economy,  first  to  accept  the  new  Constitution,  and  then,  in 
1856,  to  take  the  judgment  of  the  people  upon  a  distinct  issue,  be- 
tween the  two  plans,  and  therewith  to  be  satisfied." 

Now  I  must  say  I  am  not  willing  to  remain  content  with 
so  barren  a  satisfaction. 

I  therefore  have  made  up  my  mind  that  this  provision  is  a 
snare,  I  do  not  say  intentionally  put,  which  will  only  catch 
the  unwary.  I  think  it  safest,  on  the  whole,  to  take  my  chance 
of  a  change  under  the  present  system,  which  nobody  now  de- 
fends, believing  that  a  new  proposition,  cleared  of  all  accom- 
paniments of  an  irrelevant  nature,  and  proposed  in  a  better 
and  more  liberal  spirit  than  now  prevails,  will  meet  with  the 
ultimate  ratification  of  the  people,  and  be  an  ornament  (which 
this  can  never  be)  to  our  old  and  honored  Constitution. 

Having  at  this  length  stated  my  main  and  overwhelming 
objection  to  the  Constitution  proposed,  which  leads  me  with 
certainty  to  the  decision  to  vote  aginst  it,  because  it  does  not 
properly  regard  the  equal  rights  of  all,  I  have  scarcely  left  to 
myself  time,  or  to  you  patience,  enough  to  touch  upon  any 
other  topic. 

[On  account  of  the  lateness  of  the  hour,  Mr.  Adams  was 
compelled  to  speak  of  the  remaining  topics  more  concisely 
than  was  consistent  with  their  importance,  and  as  he  has  not 
written  out  the  rest  of  his  speech,  we  should  not  fully  present 
his  views,  even  if  it  were  worth  while  to  give  from  our  own 
notes,  as  we  might,  a  complete  report  of  what  he  did  have 
time  to  say.  We  therefore  give  simply  an  outline  of  what 
followed.] 


JUDICIARY.  255 

Mr.  Adams  proceeded  to  consider  the  amendment  in  the 
Bill  of  Rights,  rendered  necessary  by  the  change  in  the  tenure 
of  the  judges.  He  quoted  from  the  existing  Bill  of  Rights 
("  for  which,"  said  he,  "  I  need  not  say  I  have  the  greatest 
cause  to  feel  the  utmost  veneration,  and  in  which  I  should  be 
jealous  of  all  changes  which  do  not  improve  the  character  of 
the  instrument")  the  twenty-ninth  article,  as  follows: —     - 

"  It  is  essential  to  the  preservation  of  the  rights  of  every  individual, 
his  life,  liberty,  property,  and  character,  that  there  be  an  impartial  in- 
terpretation of  the  laws,  and  administration  of  justice.  It  is  the  .right 
of  every  citizen  to  be  tried  by  judges  as  free,  impartial,  and  indepen- 
dent as  the  lot  of  humanity  will  admit.  It  is,  therefore,  not  only  the 
best  policy,  but  for  the  security  of  the  rights  of  the  people,  and  of 
every  citizen,  that  the  Judges  of  the  Supreme  Judicial  Court  should 
hold  their  offices  as  long  as  they  behave  themselves  well,  and  that  they 
should  have  honorable  salaries,  ascertained  and  established  by  stand- 
ing laws." 

He  proceeded  to  point  out  the  consistency  and  harmony  of 
the  reasoning  of  this  article,  and  the  irresistible  manner  in 
which  the  conclusion  follows  from  the  premises,  contrasting 
strongly  with  the  gross  inconsistency  of  the  article  as  it  is  pro-, 
posed  to  be  amended,  as  follows :  — 

"  It  is  essential  to  the  preservation  of  the  rights  of  every  individual, 
his  life,  liberty,  property,  and  character,  that  there  be  an  impartial  in- 
terpretation of  the  laws,  and  administration  of  justice.  It  is  the  right 
of  every  citizen  to  be  tried  by  judges  as  free,  impartial,  and  indepen- 
dent, as  the  lot  of  humanity  will  admit.  It  is  therefore  not  only  the 
best  policy,  but  for  the  security  of  the  rights  of  the  people,  and  of 
every  citizen,  that  the  Judges  of  the  Supreme  Judicial  Court  should 
hold  their  offices  by  tenures  established  by  the  Constitution^  and  should 
have  honorable  salaries,  which  shall  not  be  diminished  during  their 
continuance  in  office.'''' 

Mr.  Adams  said  he  believed  that  the  principle  enunciated 
in  the  original  article  is  now  as  true  as  it  was  when  it  was 
written.  He  proceeded  to  analyze  the  principles  which  regu- 
late the  character  of  the  judicial  tenure,  and  showed  in  a  most 
convincing  manner,  that  the  tenure  during  good  behavior,  so 
far  from  being  a  feature  at  variance  with  other  parts  of  the 
Constitution,  is  consistent  with  all  of  them,  and  necessary  to 


256  INEQUALITIES.  —  COALITIONS. 

secure  their  harmony.  He  declared  that  the  only  safeguard 
which  one  or  two  individuals,  or  the  few,  have  against  injus- 
tice from  the  many,  for  the  protection  of  their  individual 
rights,  is  found  in  the  strength  given  to  the  moral  courage  of 
the  judges,  by  placing  them  in  such  a  position  that  they  are 
not  afraid  to  offend  the  majority.  If  there  be  such  a  thing  as 
a  true  democratic  principle,  this  is  one.  To  limit  the  tenure 
of  the  judges,  throws  them  directly  into  the  vortex  of  politics, 
and  makes  them  what  all  our  politicians  now  are,  weather- 
cocks. 

So  important  a  change  as  this  should  not  be  hastily  and 
rashly  made,  when  nothing  can  be  lost  by  waiting,  and  much 
may  be  gained  from  the  experience  of  other  States.  Nowhere 
has  the  plan  been  tried  where  sufficient  time  has  elapsed 
to  give  a  right  idea  of  the  result.  The  election  of  judges 
by  the  people,  to  hold  office  during  good  behavior,  would  not 
be  half  so  objectionable  as  the  limitation  of  their  tenure  while 
their  appointment  is  in  the  hands  of  the  Executive,  who  is 
the  very  incarnation  of  party  feeling  and  party  prejudice. 

Mr.  Adams  alluded  next  to  the  inconsistency  and  incongru- 
ity in  the  rules  of  election  for  various  officers  under  the  pro- 
posed Constitution  ;  the  Governor  to  be  chosen  by  a  majority, 
and,  failing  to  obtain  that,  in  the  old,  complicated  method,  al- 
tered only  by  reducing  the  number  of  candidates  to  be  selected 
from  by  the  House  from  four  to  three, —  Senators  and  Coun- 
cillors to  be  chosen  by  majorities,  —  Representatives  by  plural- 
ities, &c.  If  the  plurality  rule  be  good  in  one  case,  why  not 
in  the  others  ?  The  existing  Constitution  consistently  requires 
a  majority  throughout.  Why  is  a  change  made  ?  And  why 
is  the  number  of  candidates  in  the  Legislature  reduced  ?  If 
one  principle  more  than  another  is  demanded  by  the  progress 
of  democratic  ideas,  it  is  the  abolition  of  elections  o  fofficers 
by  the  Legislature,  and  the  giving  them  to  the  people.  This 
led  Mr.  Adams  to  speak  of  coalitions,  which  he  seemed  to 
think  justifiable  under  the  present  Constitution,  since  it  was 
but  natural  for  two  minority  parties  to  adopt  the  only  way 
they  could,  to  defeat  the  majority  party  ;  but  the  system  was 
at  fault,  and  the  opportunity  for  remedying  the  defect  which 
the  Convention  afforded  should  have  been  improved. 


POLITICAL    HONESTY.  257 

For  Heaven's  sake,  let  us  do  nothing  to  augment  the  temp- 
tations to  negotiation  of  offices.  Keeping  our  minds  and 
hearts  pure  before  God  and  man,  let  us  regard  the  guidance 
of  public  affairs  as  a  solemn  trust  springing  from  the  confi- 
dence of  our  fellow-citizens,  and  not  to  be  gained  by  any 
unworthy  acts.  The  path  of  politics  is  a  path  strewed  with 
burning  ploughshares.  Let  us  seek  to  tread  it,  worthily, 
boldly,  honestly,  if  we  tread  it  at  all.  And  let  us  fall  with 
honor,  if  fall  we  must. 


23 


EEMAEKS 


PEOPOSED   STATE   CONSTITUTION, 


JOHN   GORHAM  PALFREY. 


PUBLISHED  OCTOBER,  1853. 


EEMARKS. 


I. 


OBJECTS    OF    A    CONSTITUTION. DIVISION    OF    POWERS     AND    OF 

SUBJECTS, 

The  objects  of  a  Constitution  of  Government  cannot  be 
better  stated  than  in  the  following  language  of  the  Preamble 
to  the  Massachusetts  Constitution  of  1780  :  — 

"  The  end  of  the  institution,  maintenance,  and  administra- 
tion of  government  is  to  secure  the  existence  of  the  body 
politic ;  to  protect  it ',  and  to  furnish  the  individuals  who 
compose  it  with  the  power  of  enjoying,  in  safety  and  tran- 
quillity, their  natural  rights  and  the  blessings  of  life." 

"  It  is  the  duty  of  the  people,  in  framing  a  Constitution  of 
Government,  to  provide  for  an  equitable  mode  of  making 
laws,  as  well  as  for  an  impartial  interpretation  and  a  faithful 
execution  of  them." 

It  concerns  the  public  well-being,  that  there  should  be  "  an 
equitable  mode  of  making  laws."  Therefore  a  Legislative 
department  is  to  be  constituted,  and  so  constituted  as  to  afford 
the  greatest  possible  security  to  the  people  that  the  laws  shall 
be  equitably  made,  and  that  they  shall  express  the  people's 
deliberate  will,  and  be  just  and  salutary. 

It  concerns  the  public,  that  there  shall  be  "  an  impartial 
interpretation  "  of  the  laws.  To  this  end,  there  must  be  a 
Judicial  department ;  and  it  must  be  so  constituted  that  the 
judges  may  be  "  as  free,  impartial,  and  independent  as  the 
lot  of  humanity  will  admit." 


262 


OBJECTS     OF    A    CONSTITUTION. 


It  concerns  the  public,  that  there  shall  be  a  "  faithful  execu- 
tion "  of  the  laws.  To  this  end,  there  must  be  an  Executive 
department ;  and  it  must  be  so  constituted  that  the  laws  shall 
be  promptly  and  completely  carried  into  effect,  according  to 
their  true  tenor,  in  every  case  calling  for  their  intervention. 

The  principles  set  forth  in  these  statements  will  be  assumed 
in  the  following  discussion.  Upon  these  principles  it  was, 
that,  in  1780,  that  "  Frame  of  Government "  was  reared  for 
Massachusetts,  under  which,  to  a  rare  extent,  her  people  have 
enjoyed  the  blessing  of  just  and  wholesome  laws,  ably  and 
honestly  administered,  and  efficiently  executed. 

The  Constitution  of  1780,  recognizing  the  people's  "  right 
to  institute  government,  and  to  reform,  alter,  or  totally  change 
the  same,  when  their  protection,  safety,  prosperity,  and  hap- 
piness require  it,"  made  it  obligatory  on  the  Legislature  of 
fifteen  years  later,  to  submit  to  the  people  the  question  of  a 
revision.  But  the  people,  after  the  experiment  of  that  length 
of  time,  desired  no  revision ;  and  none  was  made.  Twenty- 
five  more  passed  in  the  same  content,  when  the  separation  of 
Maine,  making  some  of  the  provisions  of  the  old  Constitu- 
tion impracticable,  occasioned  a  Convention  to  be  called  for 
its  revisal. 

The  time  was  favorable  for  disinterested  and  calm  delibera- 
tion. It  was  what  was  called  "  the  era  of  good  feelings."  At 
no  period  of  our  national  existence  has  there  been  such  a  lull 
of  party  strife.  The  Convention  showed  a  brilliant  array  of 
wise  and  patriotic  men  of  all  parties.  Anti-Democratic  Bos- 
ton took  a  part  of  its  delegation  from  the  Democratic  ranks, 
and  the  same  was  true  of  other  towns.  As  the  result  of  its 
labors,  the  Convention  proposed  to  the  people  fourteen  dis" 
tinct  amendments,  of  which  the  people,  upon  the  reference  to 
them  in  their  primary  assemblies,  —  considering  and  passing 
upon  each  on  its  own  merits,  as  was  the  proper  course,  — 
finally  adopted  nine,  and  rejected  five. 

Among  the  amendments  thus  ratified  was  one  for  making 
future  specific  amendments,  by  means  of  g.  certain  action  of 
the  Legislature  in  two  successive  years,  confirmed  by  a  ma- 
jority of  the  people.  From  time  to  time,  in  the  progress  of 
events    and   of  opinions,   some   further   changes    have   been 


DIVISION    OF    SUBJECTS.  1863 

deemed  desirable,  and  have  accordingly  been  made  by  this 
machinery.  But  in  each  and  every  instance  of  such  action, 
as  well  as  in  the  action  of  the  Convention  of  1820,  single 
questions  have  been  submitted  to  the  people,  to  be  by  them 
considered  and  determined,  on  their  own  respective  merits, 
separately,  and  independently  of  all  other  questions. 

This  was  the  fair  way  of  dealing  with  the  people,  and  of 
getting  a  true  expression  of  their  sentiments  respecting  the 
fundamental  law  by  which  they  desired  to  be  governed.  When 
no  constitutional  government  existed, — when  a  frame  of 
government  was  to  be  reared  from  the  foundation,  as  in  1780, 
—  it  was  unavoidable  to  present  a  constitution  to  the  people 
as  a  whole.  But,  since  the  first  years  of  its  operation,  there 
never  has  been  a  question  of  any  thing  more  than  amending 
it.  There  never  has  been  the  most  insignificant  fraction  of 
the  people  who  would  have  listened  to  the  proposal  of  sweep- 
ing it  out  of  being,  and  beginning  anew.  One  voter,  or  one 
interest,  or  one  party,  may  like  one  change  ;  and  another,  an- 
other ;  and  whatever  change  the  majority  of  the  people,  on 
full  consideration,  desires,  ought  to  be  adopted.  The  people 
have  a  right  to  vote  for  what  they  like,  and  against  what 
they  dislike  ;  every  citizen  has  that  right ;  and  it  has  been 
recognized  in  all  steps  which  have  heretofore  been  taken  to 
effect  constitutional  reforms. 

But  from  this  method  the  course  taken  by  the  Constitu- 
tional Convention  of  the  present  year  is  a  total  and  violent 
departure.  Disclaiming  any  sentiment  but  one  of  perfect 
respect  for  many  of  those  who  voted  for  this  arrangement, 
among  whom  I  know  there  were  men  who  never  by  possi- 
bility could  intend  to  do  any  thing  unfair,  still  I  cannot  help 
feeling  that  that  Convention  has  encroached  on  my  rights,  as 
an  humble  citizen,  in  the  way  in  which  it  presents  questions 
of  the  last  importance  for  my  vote.  Its  result  has  the  shape 
of  a  stupendous  piece  of  log-rolling.  We,  the  people,  are 
compelled  to  answer,  in  a  single  syllable  of  affirmation  or 
denial,  to  a  mass  of  diverse  and  incongruous  matters,  set 
forth  in  some  hundred  and  forty  or  hundred  and  fifty  articles, 
new  and  old.  Of  the  mass  of  changes  proposed,  we  have  no 
choice  but  to  take  the  whole  or  none.     Timothy  Dexter  got 


264  DIVISION    OF    SUBJECTS. 

off  his  ill-assorted  cargo  in  the  West  Indies,  by  insisting  that 
whoever  bought  a  sugar-dipper  should  take  a  pair  of  skates. 
If,  in  order  to  get  what  we  desired,  we  were  only  compelled 
to  take  what  would  be  of  no  use  to  us,  our  case  would  be  no 
worse  than  that  of  his  customers.  But  we  do  not  fare  so 
well.  If  we  want  a  provision  for  the  choice  of  Senators  by 
single  districts,  the  Convention  tells  us  that  we  shall  not  be 
gratified,  unless  we  will  vote,  at  the  same  time,  that  one  man 
in  Monroe  shall  have  as  much  weight  and  power  in  the  House 
of  Representatives  as  six  men  in  Deerfield.  If  a  friend  of 
Common  Schools  desires  a  constitutional  provision  for  a  large 
appropriation  for  their  support,  he  must  buy  it  by  consenting 
to  an  invasion  of  the  independence  of  that  judicial  adminis- 
tration  which  protects  his  fireside.  Nay,  —  oddest  of  all  tricks 
of  political  legerdemain,  —  if  one  favors  the  system  of  single 
districts  for  the  choice  of  representatives,  he  must  work  his 
way  to  that  system  by  first  voting  it  down,  and  establishing 
the  opposite  one  in  its  place.  I  say,  it  is  a  grave  wrong  and 
affront  to  the  free  people  of  this  Commonwealth,  to  put  them 
in  such  durance  as  this.  It  is  usurpation  over  their  right  of 
choice  in  matters  of  the  most  profound  concern,  to  force  them 
into  that  position  that  they  can  do  no  better  than  balance 
things  which  they  approve  and  things  which  they  condemn 
against  each  other,  so  as  to  determine  whether,  on  the  whole, 
it  is  best  to  bring  on  themselves  the  evil  for  the  sake  of  get- 
ting the  good,  or  to  go  without  the  good  for  the  sake  of  es- 
caping the  evil.  They  have  a  right  to  the  opportunity  of 
voting  for  nothing  but  the  good,  and  against  nothing  but  the 
bad,  or  what  they  think  so. 

It  is  said  that  a  new  draft  of  the  Constitution  was  prefer- 
able, as  the  accumulation  of  amendments  upon  amendments 
would  bring  it  into  an  inconvenient  shape.  The  remark  has 
weight.  Suppose  it  to  have  decisive  weight ;  what  follows  ? 
That  the  people  should  be  cornered,  as  they  now  are ;  that 
a  course  should  be  taken  so  disrespectful  to  their  good  sense, 
and  so  violative  of  their  right  of  free  action  ?  Not  at  all.  If 
the  reason  of  convenience  was  urgent,  —  and  I  shall  not  deny 
that  it  was  so,  —  the  Convention,  after  agreeing  on  the  amend- 
ments to  be  proposed  to  the  people,  should  have  made  provis- 


THE    SENATE.  365 

ion  for  submitting  them  separately;  then  adjourned  over  till 
such  time  as  admitted  of  the  vote  being  taken  ;  and  then 
come  together  again,  and  digested  into  one  draft  the  amend- 
ments which  were  ratified  ;  which  last  process  might  have 
been  the  work  of  twenty-four  hours,  or  of  three  times  twenty- 
four.  Why  was  not  this  natural,  just,  and  safe  course  pre- 
ferred ?  Because  it  would  have  taken  time  ?  If  there  were 
any  party  objects  which  might  be  served  by  gaining  time, 
they  would  present  an  intelligible  reason,  but  not  a  reason 
which  the  majority  of  Massachusetts  citizens  would  probably 
approve.  Because  it  would  have  cost  money  ?  How  much 
would  it  have  cost  ?  Two  thousand  dollars,  or  three  ?  And 
in  what  proportion  may  it  be  feared  that  two  or  three,  or  two 
or  three  scores,  or  two  or  three  hundreds  of  thousands  of  dol- 
lars, will  be  outweighed  by  the  mischiefs  of  erroneous  action 
in  a  matter  of  this  moment  ?  And  what  citizen,  rich  or  poor, 
that  has  the  dullest  sense  of  the  interests  and  the  obligations 
involved,  would  not  rejoice  to  pay  his  part  of  the  cost,  for  the 
sake  of  being  free  to  cast  his  vote  with  satisfaction,  and  ac- 
cording to  his  judgment  ? 


II. 


THE    SENATE. 

From  the  beginning,  the  Legislature  of  Massachusetts,  as 
of  all  well-constituted  republics,  has  consisted  of  two  branches. 
The  provision  for  the  Senate,  or  "  first  branch,"  in  the  Consti- 
tution of  1780,  was,  that  an  aggregate  of  forty  persons  should 
be  chosen  in  districts  by  a  majority  of  the  qualified  voters 
therein.  From  among  these  forty,  the  General  Court,  when 
it  should  convene,  was  to  select  nine  to  compose  the  Execu- 
tive Council.  Those  of  the  forty  who  should  not  be  chosen 
Councillors,  or  should  not  accept  that  trust,  were  to  constitute 
the  Senate.  At  first,  the  counties  (except  Dukes  and  Nan- 
tucket, which  were  united)  were  to  be  districts  for  this  pur- 
pose, and  the  number  of  Senators  to  be  voted  for  was  by  the 
Constitution  apportioned  to  the  districts  respectively.  But 
24 


266  THE    SENATE. 

the  Legislature  was,  from  time  to  time,  to  district  the  Com- 
monwealth anew,  under  the  restrictions,  that  the  districts  were 
never  to  be  more  than  forty  in  number,  nor  fewer  than  thir- 
teen ;  and  that  no  district  should  be  "  so  large  as  to  entitle 
the  same  to  choose  more  than  six  Senators." 

Had  this  article  of  the  Constitution  continued  in  force,  it 
would  have  been  in  the  power  of  the  General  Court  to  make 
that  change  which  by  general  consent  is  demanded  at  the 
present  time.  By  a  simple  legislative  act,  forty  senatorial 
districts  might  have  been  constituted,  each  to  choose  a  single 
Senator.  But  an  amendment  of  the  Constitution,  made  in 
1840,  recognized  the  existing  county  system  of  senatorial  dis- 
tricts, and  provided  that  "  the  said  districts,  so  established," 
should  "  be  permanent."  This  was  an  unfortunate  measure, 
as  time  has  proved. 

The  manner  of  constituting  the  Senate  and  the  House  of 
Representatives,  unsatisfactory  as  to  both  branches,  for  rea- 
sons applicable  to  each  branch  severally,  was  the  great  cause 
which  moved  the  people  to  call  a  Convention  in  the  present 
year.  As  to  the  Senate,  if  any  district  fails  to  make  a  choice 
by  a  majority  of  votes,  the  vacancy  must  be  filled  by  a  joint 
ballot  of  the  two  Houses,  from  the  candidates  of  the  two  par- 
ties which  have  thrown  the  largest  number  of  votes.  After 
the  rise  of  a  third,  —  the  Liberty  party,  and  subsequently  the 
Free  Soil  party,  —  the  inconvenience,  and,  as  things  stood, 
injustice  of  this  arrangement,  began  to  be  seriously  felt.  In 
1843,  fifteen  vacancies  in  the  Senate  were  filled  from  a  party 
which  was  in  a  minority  in  the  State,  by  means  of  a  majority 
of  one  or  two  in  the  House  of  Representatives,  and  as  many 
among  the  Senators  chosen  by  the  people ;  and  the  same  op- 
eration decided  the  choice  of  Governor,  no  popular  election 
of  that  magistrate  having  been  made.  Thus  the  control  of 
both  the  executive  and  legislative  departments  was  secured 
that  year  to  the  party  which  had  cast  56,200  votes  for  its 
gubernatorial  candidate,  while  one  other  party  had  cast 
54,700,  and  the  other  6,500.  In  constituting  the  government 
of  the  present  year,  things  worked  the  other  way.  The  Whig 
party,  which  had  thrown  56,500  votes  for  its  Governor,  while 
the  aggregate  vote  of  the  other  two  parties  was  69,000,  hav- 


THE    SENATE.  267 

ing  a  majority  in  the  House  of  Representatives,  filled  the 
vacancies  in  the  Senate  with  its  men,  and  had  the  control  of 
that  body. 

This  state  of  things  occasioned  dissatisfaction  in  all  quar- 
ters. It  was  unjust,  inconvenient,  irritating,  on  all  accounts 
undesirable.  There  were  other  objections  to  the  existing  con- 
stitution of  the  Senate.  The  districts  were  too  unequal  in  size ; 
there  was  no  good  reason  why  a  lean  majority  in  the  district 
of  Dukes  and  Nantucket,  comprising  1,400  voters,  should  send 
one  Senator,  while  a  majority  equally  meagre  in  the  great 
district  of  Suffolk  or  of  Essex  should  have  power  to  elect  six, 
thus  depriving  the  minority  in  those  districts,  however  large, 
of  all  power. 

Such  considerations  led  to  a  very  general  desire  for  that 
provision  which  is  proposed  in  the  new  draft  of  the  Constitu- 
tion, viz.  that  the  Senators  should  be  chosen  by  a  plurality 
of  votes  in  forty  districts,  entitled  each  to  one  Senator.  How 
general,  how  nearly  approaching  to  unanimity,  is  the  desire 
for  this  provision,  appears  from  the  action  of  the  recent  Con- 
vention. There  were  only  four  votes  against  the  amendment, 
and  not  one  of  these  was  given  by  a  Whig,  the  party  which 
has  recently  found  its  advantage  in  the  existing  state  of  things. 
And,  in  the  resolutions  passed  at  its  recent  Convention  for 
nominating  State  officei;s,  the  obtaining  an  amendment 
of  the  Constitution  to  secure  "the  election  of  the  Senate 
from  single  districts"  is  announced  as  a  feature  of  Whig 
policy. 

Nobody  finds  fault  with  this  amendment.  Everybody 
wants  it.  There  are,  it  is  true,  some  serious  theoretical  objec- 
tions to  the  rule  of  a  plurality,  which,  as  distinguished  from  a 
majority,  is  of  course  the  smaller  number  of  the  voters.  In  a 
strict  application  of  our  republican  doctrines,  it  is  undoubtedly 
true  that  the  will  of  the  smaller  number  has  no  right  to  pre- 
vail against  the  will  of  the  larger  ;  and  that,  if  an  aggregate 
of  voters  —  some  for  one  reason,  some  for  another,  —  some 
preferring  one  man,  some  another  —  choose  to  say  that  cer- 
tain candidates  for  office  shall  not  be  put  into  office,  even  at 
the  risk  of  the  offices  remaining  unfilled,  they  have  a  right  to 
say  so,  and  to  have  their  will  prevail.     And  this  has,  down  to 


268 


THE    SENATE. 


the  present  time,  been  the  doctrine  of  Massachusetts.  The 
principle  of  elections  by  a  plurality,  against  the  will  of  a  ma- 
jority, has  never  been  recognized  by  her  till  within  three  years, 
and  then  only  in  the  case  of  the  election  of  Electors  of  Presi- 
dent and  of  members  of  Congress.  But,  on  the  other  hand, 
government  must  go  on.  It  will  not  do  to  have  an  anarchy. 
And  whenever  experience  shows  that  there  is  danger  of  such 
a  want  of  unanimity  among  the  electors  as  may  prevent  the 
government,  some  year,  from  being  put  into  working  condition 
through  the  operation  of  the  majority  principle,  it  seems  una- 
voidable to  adopt  that  method  of  choosing,  which,  among  all 
surely  practicable  methods,  comes  nearest  to  it ;  that  is,  that 
elections  should  be  made  by  pluralities. 

Such  experience,  and  such  considerations,  appear  to  have 
reconciled  the  people  of  Massachusetts,  of  all  parties,  to  the 
only  objection  to  the  proposed  amendment,  while  the  weighty 
reasons  which  recommend  it  command  wellnigh  universal 
assent.  We  can  have  the  amendment  at  once,  without  bay- 
ing it  by  any  sacrifice  in  respect  to  other  things,  as  soon  as 
the  forms  can  be  gone  through,  provided  by  the  existing  Con- 
stitution. As  there  is  no  opposition,  there  need  be  no  appre- 
hension of  delay.  "We  can  adopt  the  amendment  in  that 
manner  as  an  independent  proposition,  in  season  to  choose 
our  Senators  under  it  in  the  autugfin  of  1855.  If  we  adopt 
it  as  it  stands  in  the  scheme  of  the  late  Convention,  we  may 
choose  our  Senators  under  it  in  the  autumn  of  1854.  One 
year  is  just  the  difference  in  point  of  time.  But  the  difference 
in  another  respect  is  vast.  In  one  way,  we  get  the  benefit 
without  a  particle  of  accompanying  loss.  In  the  other  way,  it 
is  offered  to  us  at  the  expense  of  sacrifices  which  are  excessive, 
and  beyond  its  worth  ;  and  which,  if  they  were  much  less  than 
they  are,  are  entirely  needless  and  uncalled  for. 

The  people  of  Massachusetts  have  shown  themselves  wide 
awake  to  any  attempt  to  coax  them  into  one  measure  through 
the  temptation  offered  by  some  other.  The  Constitutional 
Convention  of  1820  was  a  body  singularly  free  from  party  in- 
fluences; but  the  people's  vigilance  did  not  sleep,  for  that. 
How  tender  they  were  upon  this  point,  how  jealous  of  any 
semblance  of  log-rolling,  will  be  evident  to  whoever  will  look 


THE    SENATE. 


at  their  action  on  the  amendments  submitted  to  them  by  the 
Convention  of  1820.  They  wanted  more  freedom  in  respect 
to  religious  and  parochial  affairs,  and  the  First  Article  of 
amendment  gave  them  much  more.  But  they  would  not  take 
it,  coupled  with  certain  provisions  of  that  article  which  they 
regarded  as  continued  limitations  of  the  benefit  which  they 
sought.  They  rejected  the  article,  choosing  to  wait  longer  for 
what  they  wanted,  rather  than  accept  it  on  such  terms  ;  and 
they  actually  did  wait  accordingly  twelve  years,  till  in  1833 
they  put  their  will  on  the  subject  into  a  satisfactory  shape. 
The  Fifth  Article  embraced  various  important  provisions,  sub- 
sequently adopted ;  it  abolished  what  had  long  been  the  empty 
form  of  choosing  Councillors  first  from  the  Senate ;  and  it 
offered  the  lure  of  a  constitutional  provision  for  paying  the 
Representatives  from  the  treasury  of  the  Commonwealth,  in- 
stead of  from  that  of  the  towns.  But  because  (though  im- 
measurably less  objectionable  in  this  respect  than  the  Consti- 
tution now  offered)  it  embraced  a  variety  of  provisions,  some 
intended,  as  they  thought,  to  force  the  others  through,  they 
voted  it  down,  and  took  their  own  time  to  make  the  changes 
they  desired,  one  by  one.  The  Ninth  Article  made  a  useful 
and  popular  addition  to  the  provisions  respecting  the  tenure 
of  the  office  of  Justice  of  the  Peace ;  but  because  it  was  con- 
nected with,  and  appeared  designed  to  carry  through,  another 
provision  restraining  the  liberty  of  removal  by  address,  the 
people  would  none  of  it.  The  Tenth  Article,  relating  to 
Harvard  College,  shared  the  same  fate.  It  proposed  to  open 
the  Board  of  Overseers  to  ministers  of  all  denominations,  —  a 
measure  which  the  people  favored,  and  which  was  adopted  in 
due  time ;  but  because  with  this  provision  was  associated 
what  was  construed  as  a  further  grant  of  power,  the  article 
failed  to  be  ratified  by  the  popular  vote. 

The  people  of  Massachusetts  are  as  hard  to  outwit  in  1853, 
as 'they  were  in  1820.  They  have  sense  enough  to  know  that 
when  they  want  to  do  some  duty,  or  obtain  some  benefit,  it  is 
not  necessary  to  find  their  way  to  it  through  the  doing  of 
something  which  would  discredit,  or  the  submitting  to  some- 
thing which  would  harm  them.  And  whoever  attempts  to 
24* 


270  THE    HOUSE    OF     REPRESENTATIVES. 

put  them  into  straits  of  this  sort  cannot  reckon  on  taking  any 
thing  by  his  motion.* 

III. 

THE    HOUSE    OF    REPRESENTATIVES. 

Under  the  Constitution  of  1780,  each  corporate  town  with 
one  hundred  and  fifty  ratable  polls  might  elect  one  represent- 
ative;  each  town  with  three  hundred  and  seventy-five  polls, 
two  representatives ;  and  so  on,  "  making  two  hundred  and 
twenty-five  ratable  polls  the  mean  increasing  number  for 
every  additional  representative."  As  the  population  of  the 
Commonwealth  increased,  this  arrangement  returned  too  large 
a  House  ;  too  large,  certainly,  for  economy  ;  too  large,  perhaps, 
for  convenient  deliberation.  There  have  been  Houses,  unless 
my  memory  is  at  fault,  consisting  of  more  than  six  hundred 
members. 

The  Convention  of  1820  in  vain  proposed  a  remedy.  The 
main  features  of  its  plan  were,  that  each  corporate  towrl  con- 
taining 1,200  inhabitants  might  elect  a  representative  every 
year ;  that  2,400  inhabitants  should  be  the  mean  increasing 
number  to  entitle  a  town  to  additional  representatives ;  and 
that  towns  with  fewer  than  1,200  inhabitants  should  have  the 
privilege  of  representation  every  other  year,  and  also  in  the 
year  of  the  decennial  return  of  valuation  of  estates  ;  the  mean 
increasing  number  to  be  proportionally  increased  by  the  Legis- 


•  On  this  subject  of  the  Senate,  it  is  worth  remarking,  that  the  new  Constitution 
provides  (Chap.  II.  Art.  3),  that  the  Governor  and  Council  shall  count  the  votes 
for  Senators,  "  and  ascertain  who  shall  have  received  the  largest  number  of  votes 
in  each  of  the  several  senatorial  districts,  and  the  person  who  has  so  received  the 
larcest  number  of  votes  in  each  of  said  districts  shall  be  a  Senator  for  the  following 
political  year."  If  so,  what  becomes  of  the  other  provision  (Chap.  I.  Art.  II),  that 
»  each  branch  shall  be  the  final  judge  of  the  elections,  returns,  and  qualifications  of 
its  members  "  1  Which  is  to  rule,  —  Chap.  II.  Art  3,  or  Chap.  I.  Art.  11  ?  The 
existin"'  Constitution  has  no  such  contradiction.  It  directs  (Chap.  I.  Sec.  II.  Art. 
^\  that  the  Governor  "  shall  issue  his  summons  to  such  persons  as  shall  appear  to 
be  chosen  by  a  majority  of  voters,  to  attend  on  that  day  [the  day  of  assembling 

f  the  General  Court],  and  take  their  seats  accordingly" ;  the  question  whetlier  they 
truly  elected,  so  as  that  they  "  shall  be  Senators  for  the  following  political  year," 
.   .      gtiii  reserved  for  examination  in  the  Senate. 


THE    HOUSE    OF    REPRESENTATIVES.  271 

lature  every  tenth  year,  so  as  to  keep  down  the  House  to  the 
number  of  275.  But  these  provisions  were  mixed  up  with 
other  things  in  the  Fifth  Article  of  Amendment,  and  the 
people  rejected  the  whole  together.  Several  years  after,  they 
took  up  the  same  scheme  of  representation  as  a  separate  ques- 
tion, and  in  1840  adopted  it  with  modifications,  one  of  which 
was,  that  town^  with  fewer  than  1,200  inhabitants  should  elect 
a  representative'  as  many  times  within  ten  years  as  the  num- 
ber 160  should  be  contained  in  the  number  of  its  inhabitants. 
As  so  established,  the  provision,  with  that  for  successive  ex- 
tensions of  the  ratio,  stands  at  the  present  day. 

In  place  of  this,  the  proposed  amendment  of  the  recent 
Convention  provides,  that  every  town,  however  small,  shall 
have  a  representative  six  years  out  of  ten ;  that  towns  with 
one  thousand  inhabitants,  and  fewer  than  four  thousand,  shall 
have  a  representative  every  year ;  and  that,  for  additional  rep- 
resentatives in  a  town,  four  thousand  inhabitants  shall  be  the 
mean  increasing  number.  In  cities,  instead  of  the  choice  by 
general  ticket  as  heretofore,  it  provides  that  there  shall  be  a 
division  into  districts ;  no  one  district  to  elect  more  than  three 
representatives. 

The  existing  plan  of  representation  is  bad.  This  is  worse. 
It  retains  the  objectionable  features  of  the  old  system,  and 
aggravates  them. 

The  plan  of  representation  part  of  the  time,  and  no  repre- 
sentation another  part,  is  an  utterly  indefensible  and  absurd 
anomaly  in  republican  government.  If  the  representative 
were  but  a  medium  for  drawing,  through  the  pay-roll,  some- 
thing for  his  town  from  the  public  chest,  there  would  be  some 
sense  in  the  arrangement  of  sending  him  on  that  errand  once, 
twice,  or  five  times  in  ten  years.  But  the  question  is  of  the 
right  of  a  town  —  of  a  portion  of  the  Commonwealth  —  to 
have  some  share  in  making  the  laws  that  govern  it.  If  a  right 
of  that  kind  exists,  it  exists  for  all  years  and  every  year.  If 
it  does  not  exist  for  the  whole  time,  it  exists  for  no  part  of  the 
time.  The  plan  of  occasional  representation  is  just  as  reason- 
able as  it  would  be  for  a  man  to  make  three  full  meals  a  day, 
and  then  go  without  eating,  in  alternate  weeks. 

The  representation  of  population  in  the  Senate,  and  of  cor- 


272  THE    HOUSE     OF     REPRESENTATIVES. 

porations  (in  other  words,  of  property)  in  the  House,  is  a  re- 
versal of  the  ancient  relations  of  the  two  branches.  Municipal 
corporations  are,  in  a  just  sense,  money  corporations.  They 
are  created  and  exist  for  the  protection  and  management  of 
property,  while  personal  rights  and  liberties  are  guaranteed  by 
the  laws  of  the  Commonwealth.  The  towns  must  keep  up  a 
police,  schools,  roads,  almshouses,  &c.,  but  it  is  the  money 
regulation  of  these  matters  that  belongs  to  them,  the  obliga- 
tion to  use  their  money  for  such  purposes  being  imposed  on 
them  by  the  State  laws.  Under  the  Constitution  proposed, 
the  smaller  branch  of  the  Legislature  is  the  popular  branch. 
The  popular  element  is  represented  in  the  Senate,  chosen  on 
the  basis  of  population  ;  corporations  are  represented  in  the 
House. 

The  strict  republican  principle  is,  that  all  citizens  shall  have 
equal  political  power ;  in  other  words,  that  they  shall  have  a 
share  of  representation  in  the  public  councils,  in  proportion 
to  their  numbers.  The  proposed  Constitution  violates  that 
principle  also,  and  violates  it  much  more  seriously  than  that 
which  it  is  intended  to  supersede.  The  town  of  Wenham, 
by  the  last  census,  has  1,003  inhabitants,  and  in  ten  years  has 
five  representatives  in  the  General  Court.  Boston  has  138,788 
inhabitants,  and  440  representatives  in  ten  years.  In  other 
words,  her  representative  power,  by  the  existing  Constitution, 
is  to  that  of  Wenham  as  88  to  1,  while  her  population  is  as 
138  to  1 ;  two  men  in  Wenham  having  more  power  than  three 
in  Boston.  This  is  a  great  inequality ;  and,  so  far  from  being 
remedied  by  the  amended  Constitution,  is  proposed  to  be 
largely  increased.  By  that  plan,  Wenham  will  have  one  rep- 
resentative, and  Boston  thirty-five,  every  year;  each  citizen  of 
Wenham  having  nearly  four  times  as  much  political  power  as 
a  citizen  of  Boston. 

New  Ashford,  in  Berkshire,  has  210  inhabitants,  and  sends 
two  representatives  in  ten  years.  Pittsfield,  in  the  same 
county,  has  6,032  inhabitants,  and  sends  twenty  representa- 
tives in  the  same  time.  That  is,  the  political  power  of  a  voter 
in  New  Ashford  is  more  than  three  times  that  of  a  voter  in 
Pittsfield.  So  it  stands  at  present.  According  to  the  tables 
in  the  Secretary's  Report  of  February  3,  1852  (Senate  Docu- 


THE    HOUSE    OF    REPRESENTATIVES.  278 

ment  of  1852,  No.  18),  New  Ashford,  keeping  up  its  recent 
ratio  of  decrease  in  population,  will  contain  but  193  inhabit- 
ants in  1860;  but  it  will  then,  according  to  the  proposed  Con- 
stitution, send  six  representatives  in  ten  years ;  while  Pitts- 
field,  with  8,927  inhabitants,  will  (by  the  mean  increasing 
ratio  of  that  time)  be  entitled  only  to  twenty.  The  popula- 
tion of  Pittsfield  will  be  to  that  of  New  Ashford  as  277  to  6, 
while  her  representative  weight  will  be  to  that  of  New  Ash- 
ford as  20  to  6.  A  New  Ashford  voter  will  have  nearly  four- 
teen times  as  much  weight  in  the  House  of  Representatives 
as  a  voter  in  Pittsfield.  His  present  excess  will  be  more  than 
quadrupled. 

It  is  alarming  to  think  to  what  this  may  grow.  It  looks 
like  a  rapid  movement  towards  the  rotten-borough  system. 
When  thirty  or  forty  voters  in  New  Ashford  can  send  a  repre- 
sentative to  the  General  Court  six  years  out  of  ten,  a  franchise 
there  will  presently  have  a  money  value.  Its  last  valuation 
was  $99,966;  that  of  Mount  Washington,  $93,402;  of 
Clarksburg,  $  94,835  ;  of  Monroe,  $  60,538.  There  are  not  a 
few  men  in  Boston  who  could  each  buy  the  property  of  ten 
Buch  towns ;  and  if  they  could  command  votes  in  the  Legis- 
lature by  being  landlords,  they  would  have  a  motive  to  do  so. 
These  four  towns,  with  an  aggregate  population  of  1.049  in 
the  year  I860,*  will,  by  the  proposed  arrangement,  be  entitled 
to  send  twenty-four  representatives  to  the  General  Court  in 
ten  years,  instead  of  the  eight  that  they  now  send.  The  pop- 
ulation of  all  of  them  has  decreased  and  is  decreasing  from 
one  census  to  another;  but  the  prodigious  and  increased  com- 
parative power  which  by  the  proposed  Constitution  is  to  be 
conferred  is,  by  the  same  Constitution,  never  to  be  less  than  it 


*  I  have  referred  to  a  census  in  1860,  &c.,  so  that  the  figures  might  be  verified  by 
Mr.  Secretary  Walker's  tables,  as  was  done  in  the  Convention,  in  ai-gument  in  favor 
of  the  project  (Official  Rejwrt,  &c..  Vol.  II.  p.  95).  By  the  proposed  Constitution, 
the  decennial  census  is  to  be  taken  in  1855,  1865,  &c.,  instead  of  1860,  1870,  &c. 
But  the  operation  is  the  same ;  viz.  that,  while  the  towns  which  are  to  send  six  or 
ten  representatives  in  ten  years  are  never  to  lose  any  of  their  power,  the  relative 
power  of  all  the  other  towns  is  to  be  continually  decreasing  from  census  to  census, 
with  the  increase  of  the  mean  numerical  ratio ;  in  other  words,  that  the  relative 
representative  power  of  the  small  towns,  already  enormous,  is  to  be  increased  with 
each  successive  census. 


274  THE    HOUSE    OF     REPRESENTATIVES. 

is  now ;  while  that  of  all  towns  entitled  to  send  two  or  more 
representatives  every  year  is,  by  the  same  Constitution,  to  be 
abridged  at  every  new  census.  How  does  the  case  of  such 
small  corporations  as  have  been  mentioned  differ  from  that  qf 
Gatton  and  Old  Sarum  ?  New  Ashford  has  only  one  tenth 
of  the  number  of  inhabitants  that  constituted  the  rule  by  which 
the  English  Reform  Bill  of  1831  disfranchised  sixty  boroughs 
at  a  blow.  In  1843,  the  single  vote  of  the  representative  from 
Montgomery,  a  town  of  650  inhabitants,  was  enough  to  de- 
termine the  character  of  the  government  for  the  year,  includ- 
ing the  Senate  and  the  Executive.  Hull,  I  think,  has  not 
generally  thrown  more  than  twelve  or  fourteen  votes.  Call 
the  average  twenty.  A  majority  of  twenty  is  eleven.  At  this 
rate,  by  the  proposed  Constitution,  eleven  votes  will  give  a 
seat  in  the  House  six  years  out  of  ten.  It  is  needless  to  pur- 
sue the  reflections  which  such  facts  suggest. 

The  right  of  the  small  towns  to  a  representative  in  each,  or 
each  alternate  year,  is,  let  it  be  remembered,  the  only  part  of 
the  system  which  is  to  remain  stationary,  while  (by  the  appli- 
cation of  the  mean  increasing  number,  which  is  to  be  enlarged 
with  the  enlarging  population  of  the  Commonwealth)  the  rep- 
resentative power  of  the  inhabitants  of  all  but  that  least  popu- 
lous class  of  towns  is  to  be  continually  lessened.  The  propor- 
tion is  to  be  changed  every  ten  years  in  favor  of  the  towns  of 
the  smallest  size  (those  which  have  now  less  than  4,000  inhab- 
itants), and  against  all  others;  thus  vastly  aggravating  an  evil 
and  injustice  which  must  be  owned  partially  to  exist  in  the 
present  system.  That,  by  the  proposed  Constitution,  they  will 
be  thus  aggravated,  is  just  as  clear  and  certain  as  the  evidence 
of  figures.  When  we  hear  it  said  that  the  proposed  Constitu- 
tion is  better  than  the  present  in  this  respect,  it  is  not  that 
there  is  any  disagreement  about  such  facts  as  have  now  been 
brought  to  view.  There  can  be  none.  It  is  a  disagreement 
about  what  is  better  and  what  is  worse.  The  present  Consti- 
tution operates  to  reduce,  from  time  to  time,  by  a  uniform 
rule,  the  representative  power  of  the  respective  towns  as  based 
upon  the  present  population.  The  proposed  Constitution 
secures  to  a  larger  number  of  towns  a  frequent  or  annual  rep- 
resentation ;  and  this  is  what  by  some  is  called  an  improve- 


THE    HOUSE     OF    REPRESEMTATIVES.  275 

ment.  But  it  does  so  by  a  greatly  increased  violation  of  the 
principle  of  equal  representation  ;  and  this  is  what  others  call 
the  reverse  of  an  improvement. 

I  do  not  enter  into  the  calculations  which  show  how  small 
a  minority  of  the  people  may,  under  the  proposed  system, 
command  the  House  of  Representatives.  The  people  are 
ciphering  over  these  sums  pretty  busily,  and  getting  more  and 
more  astonislied  at  the  answers  they  work  out.  There  is  an- 
other view  of  the  subject  which  deserves  a  passing  notice. 

The  doctrine  of  the  Revolution  was,  that  taxation  and 
representation  must  go  together.  It  was  founded  on  the  much 
more  ancient  English  doctrine,  that  nobody  but  the  subject, 
directly  or  by  his  representative,  had  a  right  to  dispose  of  the 
subject's  money ;  and  that  then  only  would  a  proper  economy 
be  practised,  when  the  grantors  of  a  tax  were  also  the  payers. 
Accordingly,  a  tax  in  England  is  a  grant  of  the  Commons  to 
the  Crown  or  Executive ;  and  all  money-bills  must  originate 
in  the  Lower  House,  —  a  provision  which  we  have  copied. 

In  our  Constitution  of  1780,  there  were  arrangements  for 
the  basis  of  the  Senate,  specially  designed  to  protect  property. 
The  number  of  Senators  to  which  the  districts  respectively 
were  entitled  had  reference  to  "the  proportion  of  the  public 
taxes  paid  by  the  said  districts  "  ;  and  this  discrimination  in 
favor  of  property  was  not  disturbed  by  the  proposed  amend- 
ments of  the  Convention  of  1820.  It  was,  however,  abolished 
by  the  amendment  which  went  into  effect  in  1840 ;  and  the 
Senate,  like  the  House,  was  placed  upon  a  numerical  basis. 

But  if  there  ought  to  be  no  discrimination  in  favor  of  prop- 
erty, is  it  for  the  public  good  that  there  should  be  a  discrimi- 
nation against  it  ?  Are  rich  men  or  rich  towns,  not  only  to 
have  no  more  discretion  in  the  public  disposal  of  their  own 
means  than  others  who  have  little  or  nothing  to  bestow,  but 
are  they  to  have  much  less  discretion  in  the  matter  ?  Are  the 
possessors  of  the  money  which  the  public  wants  to  have  much 
the  least  voice  —  man  for  man  and  town  for  town  —  in  the 
disposal  of  it?     Is  this  justice  ?     Is  it  policy  ? 

The  smaller  towns  are  the  poorer  towns ;  poorer,  relatively 
to  their  population.  But  the  smaller  towns,  by  the  proposed 
Constitution,  are  to  have  at  once  a  much  greater  power  over 


276  THE    HOU«E    OF    REPRESENTATIVES. 

the  public  purse  than  the  large  towns,  relatively  to  their  pop- 
ulation ;  and  that  larger  power  is  still  further  to  be  increased 
at  each  successive  census.  For  instance :  the  valuation  of 
New  Bedford  in  1850  was  $  14,489,266 ;  that  of  Hull  was 
$  117,823.  New  Bedford,  by  the  proposed  Constitution,  would 
have  fifty  representatives  in  ten  years ;  Hull  would  have  six. 
New  Bedford  has  16,441  inhabitants  ;  Hull  has  262.  A  citi- 
zen of  Hull  has  more  than  six  times  as  much  power  in  taxing 
New  Bedford  as  belongs  to  a  citizen  of  New  Bedford ;  and 
this  while  the  average  property  to  be  levied  upon  is  in  New 
Bedford  more  than  $  880  to  a  man,  while  in  Hull  it  is  less 
than  $  450. 

Nor  is  even  this  the  widest  departure  in  the  new  plan  from 
the  time-hallowed  principle  that  representation  and  taxation 
go  together.  From  the  beginning  of  things,  it  has  been  the 
rule  in  Massachusets  that  the  payment  of  some  tax  (the  low- 
est tax  being  only  a  fraction  of  a  dollar)  should  be  held  as  a 
condition  of  the  right  to  vote.  All  this  is  abolished,  as  to 
voting  in  State  elections,  under  the  first  article  of  Chapter  IX. 
of  the  proposed  Constitution.  A  man  who  pays  nothing  to 
the  public  is  to  have  as  much  power  (or,  as  in  cases  like  that 
above  mentioned,  much  more  power)  in  levying  contributions 
for  the  public  service,  as  those  whose  contribution  is  to  be 
largest.  His  own  pocket  is  not  to  be  at  all  touched,  when  he 
makes  any  amount  of  draft  upon  his  neighbor's  earnings. 
The  Convention  did  not  hold  this  to  be  equitable  or  politic  in 
respect  to  voters  on  town  affairs.  They  considered  the  strong 
disinclination  that  would  be  felt  by  the  industrious  people  of 
the  towns  to  having  their  money  voted  away  in  town-meeting 
by  those  who  made  no  contribution  whatever  to  the  common 
stock.  And  therefore  they  refused  to  make  that  application 
of  the  principle.  But  they  propose  it  for  our  adoption  in  re- 
spect to  the  election  of  those  who  are  to  administer  upon  the 
people's  money  in  the  General  Court. 

So  the  case  stands  thus.  Formerly  there  was  in  the  Senate 
a  discrimination  in  favor  of  property,  while  the  basis  of  the 
House  of  Representatives  was  population.  The  discrimina- 
tion in  favor  of  property  was  done  away  with,  some  years  ago, 
for  the  Senate ;  while,  in  the  House,  a  strong  discrimination 


THE    HOUSE    OF     REPRESEMTATIVES.  277 

against  property  is  to  be  rendered  permanent  by  the  new  Con- 
etitution,  and  to  be  extended  every  ten  years. 

The  only  way  to  attain  a  near  approach  to  an  equality  of 
right  in  representation,  is  by  a  district  system,  dividing  the 
large  towns  and  aggregating  the  small.  The  small  towns  do 
not  like  to  be  debarred  from  representation  in  their  corporate 
capacity ;  and  their  objection  has  been  yielded  to,  to  the  utter 
abandonment  of  the  principle  of  equality.  On  the  other  hand, 
the  proposed  Constitution  districts  the  cities,  depriving  them 
of  their  privilege,  hitherto  enjoyed,  of  representation  as  corpo- 
rations. Is  this  equitable  ?  If  the  new  system  be  good  for 
one  party,  is  it  not  good  for  the  other  ? 

By  an  article  of  the  proposed  Constitution  (Chap.  XIV. 
Art.  4),  it  is  provided  that  the  Legislature  of  the  year  1856 
shall  district  the  Commonwealth  for  Representatives  as  well 
as  Senators,  and  submit  their  plan  to  the  people,  to  become  a 
part  of  the  Constitution  if  confirmed  by  the  popular  vote.  As 
this  article  cannot  prevail  except  along  with  the  rest  of  the 
Constitution,  it  is  much  relied  upon  to  propitiate  to  the  instru- 
ment those  who  are  the  most  opposed  to  that  scheme  of  rep- 
resentation which  it  proposes  for  immediate  adoption  :  to  them 
the  hope  is  held  out  of  getting  through  it  ultimately  to  the 
district  system.  I  cannot  but  look  upon  that  hope  as  utterly 
illusory.  It  is  true  that  the  provision  makes  it  incumbent 
upon  the  Legislature  of  1856  to  pass  a  law  presenting  that 
scheme  for  the  people's  action.  But  the  only  way  to  pass  it, 
is  for  the  two  Houses  to  agree.  And  what  power  can  compel 
them  to  agree  upon  an  act,  which,  from  its  nature,  must  go 
into  much  detail,  involving  a  great  variety  of  compromises, 
and  into  which  has  been  introduced  the  option  of  "  single  or 
double  districts,"  as  if  purposely  for  an  element  of  discord  ? 
Into  the  House  of  Representatives  of  1856,  towns  having  less 
than  one  third  of  the  population  of  the  Commonwealth  may 
throw  a  majority  of  fifty.  Is  it  to  be  expected  that  a  House 
so  composed  will  pass  such  a  districting  bill  as  will  have  a 
fair  chance  for  concurrence  by  the  Senate,  based,  as  that  body 
is  to  be,  on  population  ?  Reasoning  on  the  common  princi- 
ples of  human  nature,  is  there  much  reason  for  confidence  that 
the  project  will  not  be  strangled  in  such  hands?  And  if,  in 
25 


278  THE    HOUSE    OF    REPRESENTATIVES. 

any  way,  the  system  of  districting  falls  through,  that  year, 
then  the  old  system  remains  as  the  permanent  arrangement ; 
for  the  duty  of  proposing  the  district  system  to  the  people  is 
limited  by  the  Article  to  the  Legislature  of  the  year  1856. 

Again  :  a  person  may  be  in  favor  of  a  districting  system, 
and  yet  not  of  just  such  a  one  as  the  Article  in  question  de- 
scribes, and  which  alone  it  provides  for.  That  Article  directs 
that  the  districts  shall  be  "  as  nearly  equal  as  may  be  in  the 
number  of  qualified  voters  resident  in  each,"  making  the  very 
material  substitution  of  qualified  voters  for  inhabitants.  More- 
over, a  person  may  be  in  favor  of  the  district  system,  without 
wishing  to  apply  its  principles  with  so  much  rigor  as  is  pro- 
posed, where:  the  districts  are  required  to  be  "  as  nearly  equal 
as  may  be."  Mr.  Dana  made  an  exceedingly  able  speech  in 
the  Convention  against  the  district  system.  Many,  of  whom 
I  profess  to  be  one,  are  much  impressed  by  his  remarks  on 
the  necessity  of  protecting  the  Commonwealth  against  cer- 
tain dangerous  influences  in  the  great  cities,  without,  how- 
ever, being  able  to  see  that  we  should  be  justified  in  giving 
such  an  immense  preponderance  of  power  to  the  small  towns 
as  is  proposed  by  the  new  Constitution.  We  are  of  the  opin- 
ion, that  in  those  crowded  marts  and  thoroughfares  an  unpa- 
triotic and  hurtful  policy  has  prevailed  and  prevails,  and  too 
probably  will  continue  to  prevail,  by  force  of  essential  elements 
in  the  constitution  of  society  in  such  places.  At  all  events, 
such  local  accumulations  of  political  power  and  influence  as 
are  involved  in  the  strictly  equal  representation  of  dense 
masses  of  population,  even  when  they  should  be  broken  up 
into  city  districts,  seem  to  us  not  consistent  with  the  public 
security.  In  his  reply  to  Mr.  Dana,  Mr.  Hillard  very  properly 
said,  that  he  was  willing  "  to  yield  something  of  the  numer- 
ical proportion  to  which  Boston  was  entitled  " ;  and  admitted 
that  he  should  not  expect  Boston,  with  about  a  hundred  and 
forty-four  times  as  many  inhabitants  as  Hatfield,  and,  at  the 
same  time,  "  with  its  larger  proportion  of  the  worthless  classes, 
and  larger  proportion  of  the  dangerous  classes,"  to  be  clothed 
with  a  hundred  and  forty-four  times  as  much  representative 
power  as  Hatfield.  A  district  system  which  should  do  this,  is 
practically  out  of  the  question.     Yet  precisely  such  a  district 


THE    HOUSE    OF    REPRESENTATIVES.  279 

system  as  should  do  this  —  that  system,  and  no  other — is, 
by  the  proposed  Constitution,  to  be  offered  to  the  people  by 
the  Legislature  of  1856.  Of  course,  it  would  be  defeated, 
and  there  would  be  an  end  of  the  scheme  of  districting,  so  far 
as  it  has  a  semblance  of  being  befriended  by  a  contingent 
provision  of  the  proposed  Constitution.  It  is  no  essential 
feature  of  a  district  system,  that  the  districts  should  be  strictly 
"  as  nearly  equal  as  may  be,"  if  the  public  good,  as  made 
manifest  in  other  considerations,  should  require  some  partial 
departure  from  that  principle.  Our  first  Constitution  gave 
one  Representative  to  every  hundred  and  fifty  ratable  polls, 
but  required  three  hundred  and  seventy-five  for  two  ;  and  a  dis- 
crimination of  this  nature,  with  a  different  ratio,  still  prevails. 
A  similar  sliding  scale,  with  a  ratio  of  increase  not  excessive, 
but  sufficient  for  the  common  protection,  might  be  applied  to 
the  great  masses  of  population,  as  a  feature  of  a  districting 
system.  But  the  prospective  constitutional  provision  ex- 
cludes every  such  arrangement.  It  presents  the  district  sys- 
tem in  what  is  very  generally  regarded  as  an  ineligible  form, 
and  permits  its  adoption  in  no  other.  It  is  so  worded  as  to 
insure  defeat. 

We  constantly  hear  it  said,  that,  under  the  present  system, 
some  of  the  small  towns  are  "  disfranchised,"  and  more  and 
more  will  be  every  ten  years.  Nothing  can  be  further  from 
the  truth.  The  small  towns  may,  every  one  of  them,  vote  for 
a  Representative  every  year  under  the  existing  Constitution. 
They  have  only  —  enough  of  them  to  make  a  certain  aggre- 
gate of  population — to  associate  themselves  for  that  purpose, 
and  they  never  need  be  without  their  Representative.  If  they 
are  ever  "  disfranchised,"  it  is  by  a  voluntary  waiver  of  a  right 
which  the  existing  Constitution  secures  to  them. 

Nor  will  the  proposed  Constitution  do  away  with  this  "  dis- 
franchisement." Still,  every  town  of  less  than  1,000  inhabit- 
ants will  be  "disfranchised"  four  years  in  ten.  While,  should 
the  present  Constitution  continue  in  force,  the  evil  which  is 
complained  of,  as  being  created  by  it,  would  have  a  tendency 
to  repair  itself.  It  may  well  be  supposed,  that  one  reason 
why  towns  too  small  to  be  represented  every  year  have  not 
availed  themselves,  to  a  greater  extent,  of  that  constitutional 


280  THE    HOUSE    OF    REPRESENTATIVES. 

provision  which  allows  them  to  associate  together  for  the  an- 
nual election  of  a  Representative,  is,  that,  being  as  yet  few  in 
number,  they  are  comparatively  remote  and  scattered.  As 
the  number  increases  with  the  decennial  increase  of  the  mean 
ratio,  there  will  of  course  be  more  of  them  contiguous  to  each 
other;  and,  as  the  inconvenience  of  association  is  lessened  by 
this  cause,  it  is  natural  to  suppose  that  the  dislike  to  it  may 
abate,  and  thus  what  is  virtually  a  voluntary  district  system 
be  gradually  introduced. 

I  do  not  defend  the  representative  system  of  the  present 
Constitution.  Far  from  it.  It  is  bad.  But  I  will  not,  be- 
cause it  is  bad,  vote  to  substitute  another,  which  is  worse  than 
itself  in  its  worst  features  ;  and  when,  still  further,  in  order  to 
make  the  substitution,  I  must  vote  at  the  same  time  for  other 
provisions  very  important  in  my  view,  and  very  mischievous. 
I  believe  a  districting  system  for  the  choice  of  Representatives 
is,  on  the  whole,  what  justice  and  expediency  require.  But  I 
do  not  esteem  that  system,  which  alone  is  contemplated  in  the 
prospective  provision  of  the  amended  Constitution,  to  be 
either  a  correct  or  a  practicable  one  ;  if  ever  so  eligible,  T  have 
nothing  which  can  be  called  a  reasonable  hope  of  attaining  it 
in  the  manner  proposed ;  and  if  entirely  eligible  and  attain- 
able in  the  manner  proposed,  I  could  not  purchase  it  at  the 
price  which  is  demanded,  of  assent  to  other  provisions  of  the 
same  instrument. 

The  true  course  under  such  circumstances  seems  to  be,  to 
refuse  to  help  in  making  things  worse,  and  await  a  favorable 
time  for  making  them  better.  Just  as  no  treaty  between  na- 
tions is  a  good  one,  which  leaves  to  either  party  occasions  for 
future  discontent  and  disturbance,  so  no  Constitution  can  be 
a  good  one,  which  bears  with  oppressive  weight  on  a  large 
portion  of  the  people,  especially  on  the  major  number  of  them. 
A  temporary  majority  may  perhaps  carry  this  Constitution. 
But  majorities  change,  and  that  Constitution  which  is  too  un- 
equal in  its  distributions  of  power  cannot  give  permanent 
satisfaction  or  tranquillity.  There  is  too  much  reason  to  fear, 
that,  smarting  under  such  injustice,  a  majority  may  some  time 
feel  entitled  to  right  itself,  even  by  disturbances  such  as,  not 
long  ago,  were  witnessed  in  Rhode  Island. 


THE    JUDICIARY.  281 

IV. 

THE    JUDICIARY. 

Hitherto  the  tenure  of  the  judicial  office  in  Massachusetts 
has  been  for  good  behaviour.  "  It  is  the  right  of  every  cit- 
izen," says  Article  XXIX.  of  the  Bill  of  Rights  of  1780,  un- 
altered till  now,  "  to  be  tried  by  judges  as  free,  impartial,  and 
independent  as  the  lot  of  humanity  will  admit.  It  is,  there- 
fore, not  only  the  best  policy,  but  for  the  security  of  the  rights 
of  the  people  and  of  every  citizen,  that  the  Judges  of  the  Su- 
preme Judicial  Court  should  hold  their  offices  as  long  as  they 
behave  themselves  well,"  &c.  This  the  Convention  of  1853 
proposes  to  alter  so  as  to  read  in  the  following  manner:  —  "It 
is  the  right  of  every  citizen  to  be  tried  by  judges  as  free,  impar- 
tial, and  independent  as  the  lot  of  humanity  will  admit.  It  is, 
therefore,  not  only  the  best  policy,  but  for  the  security  of  the 
rights  of  the  people  and  of  every  citizen,  that  the  Judges  of 
the  Supreme  Judicial  Court  should  hold  their  offices  by  ten- 
ures established  by  the  Constitution^^  &c.  And  then  it  goes  on 
to  provide,  in  Chapter  VIIL,  that  Judges  of  the  Supreme  Court 
hereafter  to  be  appointed,  and  also  Judges  of  the  Court  of 
Common  Pleas,  as  long  as  the  law  establishing  that  Court 
remains  in  force,  shall  hold  their  offices  for  ten  years ;  at  the 
end  of  which  time,  the  Governor  and  Council  may  reappoint 
or  supersede  them  at  pleasure. 

This  measure  has  undeniably  taken  the  people  by  surprise. 
In  the  speeches  and  other  appeals  of  the  different  parties, 
while  the  measure  of  holding  a  Convention  was  pending,  no 
plan  of  the  kind  was  so  much  as  suggested.  Neither  party 
expressed  an  intention  to  make  any  change  in  the  judiciary 
system.  By  some  of  the  leading  men  who  had  promoted  the 
Convention,  it  was  admitted,  in  the  debate  upon  the  subject 
in  that  body,  that,  if  a  design  to  make  the  Judiciary  elective 
had  been  avowed,  the  proposal  to  hold  a  Convention  would 
probably  not  have  been  sustained  by  the  people;  and  in 
respect  to  any  change  in  the  term  of  judicial  service,  or  the 
25* 


282  THE    JUDICIARY. 

manner  of  appointment,  an  equally  cautious  silence  was  pre- 
served. 

There  is  no  more  peremptory  lesson  of  history,  no  better 
established  doctrine  of  political  science,  than  this :  that,  for 
free  governments  to  be  sustained  and  do  their  office,  it  is  es- 
sential that  the  three  departments  be  kept  distinct.  The  exec- 
utive must  not  be  at  the  mercy  of  the  judicial  or  legislative ; 
nor  the  legislative  at  that  of  the  judicial  or  executive  ;  nor  the 
judicial  at  that  of  the  executive  or  legislative. 

But  this  great  lesson  of  the  ages  it  is  now  proposed  so  far 
to  set  aside.  There  are  six  Judges  of  the  Supreme  Court. 
Oftener  than  once  in  two  years,  a  vacancy  on  that  bench  is  to 
be  created  by  the  new  Constitution.  Reckoning  deaths  and 
resignations,  vacancies  will  occur  nearer  to  once  in  every  year 
than  to  once  in  two  years.  Not  much  less  frequently  than 
every  year,  it  is  to  be  in  the  power  of  the  Governor,  or  of  the 
Governor's  party  friends,  to  say  to  one  sixth  of  the  Court, 
that,  unless  they  decide  questions  so  as  to  suit  the  powers 
that  be,  one  sixth  of  the  Court  shall  presently  be  displaced. 
Every  succeeding  year  or  two  years  will  bring  up  another  to 
pass  the  same  ordeal.  What  independence,  what  dignity, 
what  weight,  can  there  be  in  the  character  of  a  judge  under 
such  circumstances  ? 

A  Judge  of  the  Supreme  Court  has  come  to  be  fifty  or  six- 
ty years  old.  He  has  a  family  dependent  on  his  earnings. 
He  has  been  away  from  the  bar  ten  or  twenty  years,  and  has 
changed  his  habits  and  parted  from  his  clients.  His  period  of 
official  service  is  before  long  to  expire.  It  is  presently  to  be  in 
the  Governor's  power  to  continue  to  him  the  means  of  comfort- 
able living,  or  reduce  him  to  poverty  and  shifts.  On  the  com- 
mon principles  of  human  nature,  how  is  it  possible  to  say 
that  a  judge  so  situated  is  not  under  a  dangerous  influence  so 
to  act  as  that  he  may  stand  well  with  the  Governor  and  the 
Governor's  backers  ?  Take  such  a  case  as  that  of  the  old 
Charlestown  Bridge.  Such  cases  may  occur  over  and  over 
again.  On  that  occasion,  strong  feelings  and  interests,  on 
the  part  of  great  numbers,  were  arrayed  against  what  others 
considered  to  be  private  rights.  No  matter,  for  the  present 
argument,  which  side  was  right  and  which  was  wrong.     It 


THE    JUDICIARY.  $88 

was  doubtless  for  the  interest  of  the  public,  in  the  long  run, 
that  justice  should  be  done,  wherever  it  might  strike.  Yet 
who  can  say,  that,  supposing  the  weaker  party  in  that  in- 
stance to  have  had  justice  on  their  side,  they  would  have  had 
a  fair  chance  of  getting  it,  if,  within  some  greater  or  less  frac- 
tion of  ten  years,  every  Judge  of  that  Court  was  to  retain  or 
lose  his  place  according  to  the  chances  of  a  Governor's  elec- 
tion ?  There  is  no  more  appropriate  business  of  courts  of 
justice  than  to  protect  the  rights  of  the  weak  and  few  against 
the  usurpations  of  the  strong  and  many;  and  it  is  impossible 
for  them  to  do  this,  unless  they  are  strong  and  independent 
themselves.  Every  man  of  a  domineering  majority  may  in 
time  come  to  want  that  protection  for  himself,  through  an  in- 
dependent judiciary,  which,  in  the  pride  and  insolence  of  his 
party  strength,  he  grudged  to  others.  Who  would  like  to  see 
the  judge  who  is  to  pass  between  him  and  his  neighbor  dan- 
cing attendance  in  the  Governor's  antechamber,  as  the  expira- 
tion of  his  ten  years  draws  nigh,  and  watching  the  signs  of 
the  times  to  know  on  what  terms  a  re-nomination  may  be 
had  ?  Who  wants  to  see  the  judges  calculating  the  chances 
of  the  political  parties  as  a  November  election  approaches, 
and  musing  on  the  prospect  of  being  provided  for  or  impover- 
ished according  as  they  decide  questions  before  them  this  way 
or  that  ?  For  our  judges  we  must  take  men,  imperfect  men  : 
that  we  cannot  help.  The  most  we  can  do  is  to  take  the  best 
bonds  for  their  integrity  which  we  can  get :  first,  from  the  up- 
right character  which  we  discern  in  them  ;  secondly,  from  the 
safe  and  independent  position  in  which  we  place  them.  Who 
can  pretend,  that,  if  tried  by  a  judge  liable  to  be  retained  or 
displaced  at  a  not  distant  time,  according  as  he  decides  one  or 
another  case,  he  enjoys  his  right  "  to  be  tried  by  judges  as 
free,  impartial,  and  independent  as  .the  lot  of  humanity  will 
admit"?  The  advocates  of  the  proposed  Constitution  talk  of 
restricting  the  patronage  of  the  Executive.  But  what  a  tre- 
mendous extension  -of  its  patronage  is  that  which  lays  the 
Judiciary  at  its  feet ! 

There  is  no  question,  in  any  quarter,  about  the  right  of  the 
people  to  appoint  and  remove  judges,  as  well  as  other  magis- 
trates, at  their  pleasure.     The  only  question  is,  how  can  the 


284 


THE    JUDICIARY. 


people  exercise  their  undisputed  power  in  this  respect,  so  as 
to  secure  for  themselves  the  most  faithful  and  able  discharge 
of  the  duties  of  the  judicial  office  ? 

What  sort  of  men  is  it  for  the  public  interest,  and  for  every 
individual's  interest,  that  we  should  have  for  judges  ?  With- 
out doubt,  men  of  talents,  learning,  and  character ;  and  a  rare 
succession  of  such  men  we  have  been  fortunate  enough  to 
secure  under  the  old  system  ;  though,  from  the  very  moderate 
income  of  judges,  compared  with  that  of  eminent  practition- 
ers at  the  bar,  it  has  often  been  found  difficult  to  induce  the 
proper  man  to  take  a  vacant  seat  upon  the  bench.  The  great 
attractions  of  the  place,  which  have  induced  the  best  men  to 
accept  it,  to  the  sacrifice  of  other  considerations,  have  been 
its  independence,  security,  and  seclusion  from  party  clamor. 
These  attractions  we  propose  now  to  divest  it  of ;  and,  when 
they  are  taken  away,  how  can  we  hope  any  longer  to  enlist 
the  highest  character  and  talent  in  judicial  service  ?  Nothing 
in  the  future  is  more  certain,  than  that  we  shall  thenceforward 
see  upon  the  bench  men  altogether  inferior  to  those  who  have 
heretofore  adorned  it.  The  men  whom  we  most  want  for  the 
place  will  not  look  at  it  under  such  circumstances ;  there  is 
no  reason  why  they  should,  and  all  personal  reasons  to  the 
contrary  ;  and  it  will  sink  more  and  more  into  the  condition 
of  a  prize  for  active  partisans,  claiming  it  as  their  share  of 
the  spoils  after  some  hotly  contested  election.  The  court  will 
become  inferior  to  the  bar,  a  state  of  things  in  which  there 
can  be  no  safe  administration  of  the  law ;  uneasiness,  dis- 
trust, discontent,  will  take  the  place  of  the  confidence  which 
has  hitherto  been  felt  in  the  intelligence  and  uprightness  of 
the  tribunals ;  the  judicial  decisions  of  Massachusetts  will 
sink  everywhere  from  the  high  estimation  in  which  they  have 
been  held.  In  short,  it  is  simply  impossible,  that,  with  the 
proposed  change,  our  administration  of  justice  should  be  as 
able  and  impartial  as  it  has  been. 

But  it  is  argued  that  we  ought  to  have  some  method  of 
relief  from  incompetent  and  unfaithful  judges.  No  doubt  we 
ought ;  and  we  have  it  already  in  perfection.  Passing  by  the 
process  of  impeachment,  nothing  can  be  easier  nor  more  sum- 
mary than  that  procedure  provided  by  the  present  Constitu- 


THE    JUDICIARY.  285 

tion,  of  removal  by  address  of  the  two  Houses  to  the  Gov- 
ernor. It  is  a  prompt,  efficient,  infallible  remedy  for  every 
case  that  can  be  supposed  of  general  dissatisfaction.  In  its 
practical  operation,  it  goes  far  to  insure  the  object  of  delicacy, 
professed  to  be  aimed  at  by  the  proposed  new  provision  ;  viz. 
the  retirement  "to  private  life,  without  violence  or  ungracious 
circumstances,  and  scarcely  with  observation."  For  it  can 
hardly  happen  that,  when  the  public  dissatisfaction  becomes 
so  manifest  as  to  threaten  the  removal  of  a  judge  by  address, 
his  own  feelings,  or  the  interference  of  his  friends,  will  not 
lead  him  to  anticipate  that  step  by  a  voluntary  resignation. 
If  it  could  ever  happen,  it  would  be  only  in  a  case  of  a  judge 
who  was  so  confident  of  the  correctness  of  his  course  that  he. 
would  stand  by  it  to  the  last,  defy  the  consequences,  and,  by 
giving  the  greatest  possible  solemnity  and  publicity  to  the 
issue  made,  throw  himself  on  the  judgment  of  posterity. 
And  that  is  just  the  kind  of  judge  that  it  concerns  the  public 
not  to  part  with,  on  any  terms. 

Some  of  the  judicial  offices  the  new  Constitution  proposes 
to  fill  by  local  elections  once  in  three  years,  instead  of  by  ap- 
pointment by  the  Commonwealth's  authority,  as  heretofore. 
Such  are  the  offices  of  Judges  of  Probate,  Police  Justices,  and 
Trial  Justices  (Chap.  VII.  Art.  4;  VIII.  Art  7,  8). 

The  objections  to  this  innovation  are  very  weighty.  In 
rich  counties,  where  large  sums  of  money  pass  under  the 
jurisdiction  of  Judges  of  Probate  every  year,  including  not 
only  executors'  and  administrators',  but  guardians'  and  trus- 
tees' accounts,  they  will  have  been  diligent  if  they  have 
learned  their  business  well  at  the  end  of  the  first  three  years. 
Change  them  every  three  years  (which  is  but  too  likely  to 
come  to  pass  if  the  places  are  thrown  into  the  party  scramble), 
and  we  shall  never  have  a  first-rate  Judge  of  Probate  for  any 
fraction  of  the  time.  Judges  of  Probate  stand  between  wid- 
ows and  orphans  on  the  one  hand,  and  those  who  have  the 
custody  of  their  estates  on  the  other.  Widows  and  orphans 
are  protected  by  the  correct  accounts  and  sufficient  bonds  of 
executors,  guardians,  and  trustees.  The  Judge  of  Probate 
has  the  cognizance  and  regulation  of  those  accounts  and 
bonds.    Guardians  and  trustees  are  often  of  that  class  of  solid 


286 


THE    JUDICIARY. 


men,  who  have  great  weight  in  party  operations.  "When  I 
want  the  accounts  of  an  estate  in  which  I  am  interested 
strictly  sifted,  and  the  bonds  put  properly  high,  it  will  be  a 
subject  of  uneasiness  and  regret  to  me  if  the  Judge  of  Probate 
is  presently  to  be  elected  in  a  county  in  which  my  trustees 
are  influential  men  in  the  Conventions.  There  was  lately  in 
Norfolk  a  question  of  guardianship,  which  excited  strong  and 
general  interest.  I  know  nothing  of  its  circumstances,  except 
that  one,  at  least,  of  the  parties  to  the  discussion  was  a  gen- 
tleman of  deservedly  great  political  influence  in  the  county. 
It  is  a  thing  infinitely  to  be  deprecated,  that  the  administra- 
tion of  justice  in  so  interesting  a  department  should  be  ex- 
.  posed  to  such  a  peril  as  would  arise  from  the  influence  of  in- 
terested parties  over  local  elections. 

So  of  Commissioners  of  Insolvency,  a  class  of  ofl^cers  ex- 
ercising very  important  quasi-judicial  functions.  They,  too, 
are  to  be  elected  in  the  respective  counties  once  in  three  years 
(Chap.  VII.  Art.  4).  Among  the  many  classes  of  citizens, 
there  is  probably  no  one,  which,  in  proportion  to  its  numbers, 
furnishes  more  of  the  active  politicians,  or  acts  a  busier  or 
more  influential  part  in  the  primary  and  nominating  Conven- 
tions, than  that  of  insolvents.  Is  it  for  the  interest  of  the 
public  at  large  that  the  nomination  of  these  officers  should  be 
liable  to  be  in  their  hands.  Will  a  person  who  holds  an  in- 
solvent's note  think  that  this  arrangement  will  tend  to  in- 
crease its  value,  or  the  contrary  ? 

The  administration  of  justice  ought  to  be  uniform  through- 
out the  Commonwealth.  One  way  of  securing  this  is  to 
have  the  administrators  of  justice,  in  every  part  of  the  juris- 
diction, appointed,  not  by  any  local  authority,  but  by  the  au- 
thority of  the  Commonwealth.  And  this  is  the  method  which 
has  been  hitherto  strictly  observed,  but  which  it  is  now  pro- 
posed to  change.  Cities  elect  their  Mayors  and  Aldermen, 
because  Mayors  and  Aldermen  are  to  carry  into  effect  the 
charter  provisions  and  by-laws  of  the  cities  respectively.  But 
Massachusetts  as  yet  appoints  judicial  officers  in  all  her  cities, 
because  her  laws  are  to  have  effect  alike  in  all  those  cities. 
It  is  her  business  that  those  magistrates  are  to  do,  and  not 
that  of  the  municipal  corporations.     If  I  am  a  citizen  of  Rox- 


THE    JUDICIARY.  287 

bury  in  Norfolk,  it  interests  me  about  as  much  to  have  crimi- 
nal law  rightly  administered  in  Boston  in  Suffolk,  as  it  inter- 
ests a  citizen  of  Boston  itself.  At  all  events,  Massachusetts, 
which  is  a  body  politic,  cannot  wisely  or  safely  leave  her  cities 
to  their  own  judicial  administration,  any  more  than  she  can 
leave  them  to  their  own  legislation.  Think  of  Boston  choos- 
ing a  Police  Justice  on  an  average  once  a  year,  and  the  pro 
and  anti  Maine  Law  parties,  the  pro  and  anti  lottery,  the  pro 
and  anti  hack-regulation  parties,  and  so  on,  which  would  be 
struggling  for  the  possession  of  him.  The  Recorder's  Court 
in  the  city  of  New  York  is  a  criminal  court.  He  sits  with 
two  of  the  Aldermen,  chosen  at  the  annual  charter  election. 
If  report  says  true,  a  serviceable  partisan  of  the  Aldermen 
who  made  two  thirds  of  the  Court,  having  been  convicted  re- 
cently on  a  criminal  charge,  the  Aldermen  prevented  his  being 
sentenced,  by  absenting  themselves  from  the  bench.  It  is  im- 
possible to  be  at  the  trouble  of  ascertaining  the  truth  of  such 
a  story.  But  it  seems  too  probable  not  to  be  true.  At  all 
events,  the  general  likelihood  of  a  perversion  of  justice  under 
the  like  circumstances  is  so  great,  and  so  serious,  as  to  make 
the  proposed  change  appear  to  the  last  degree  ineligible. 
Hitherto,  in  every  part  of  her  dominion,  Massachusetts  has 
administered  her  laws  by  her  own  agents.  Her  people  have 
meant  to  hold  their  whip  over  evil-doers,  just  the  same  in 
Suffolk  as  in  Berkshire.  She  will  consult  for  her  security  and 
good  order  as  little  as  for  her  dignity,  when,  in  so  important 
a  department  as  that  of  the  jurisdiction  of  Police  and  Trial 
Justices,  she  exposes  her  judicial  administration  to  the  influ- 
ence of  local  interests  and  excitements. 

In  respect  to  the  Clerks  of  Courts,  what  interest  have  the 
public  ?  Clearly  this  very  material  one  :  that  the  business  of 
the  courts,  so  far  as  depends  on  the  recording  and  correspond- 
ing officers,  shall  be  promptly,  diligently,  and  correctly  done. 
How  may  that  interest  best  be  secured  ?  Apparently  by  the 
method,  hitherto  pursued,  of  allowing  the  courts  to  appoint 
aad  remove  their  own  clerks,  and  so  to  hold  them  to  a  direct 
and  strict  accountability.  If  a  clerk  is  incompetent  or  remiss, 
we,  the  people,  are  in  no  position  to  know  of  it,  except  at 
secondhand ;  and  then  we  may  be  doubtful  or  divided  about 


THE    EXECUTIVE. 

it.  The  court  know  it  at  once,  because  it  interferes  with  the 
regular  going  of  their  machinery.  Their  personal  conven- 
ience and  credit  are  deeply  concerned  in  having  the  business 
of  the  clerk's  office  well  and  thoroughly  done ;  and  they  are 
the  persons  who  will  immediately  and  certainly  know  wheth- 
er it  is  so  done.  It  is  evidently  and  eminently  for  the  public 
advantage,  then,  that  they  should  be  charged  with  seeing  it 
done,  and  accordingly  with  designating  the  persons  to  do  it. 
To  make  these  offices  elective  in  the  counties,  as  is  now  pro- 
posed (Chap.  VII.  Art.  4),  would  be  just  as  much  out  of  the 
safe  and  regular  course  of  business,  as  it  would  be  for  the 
Secretary  of  the  Senate,  or  the  Clerk  of  the  House,  to  be  cho- 
sen by  general  ticket,  or  for  the  stockholders  in  a  bank  to  ap- 
point and  remove  the  book-keepers  and  tellers.  To  subject 
the  clerkships  to  election  in  the  counties,  is  to  throw  so  many 
more  prizes  into  the  heap  to  be  fought  for  by  couaty  dema- 
gogues ;  but  it  is  not  a  measure  for  the  advantage  of  us  who 
have,  or  may  have,  business  in  the  courts. 


V. 


THE    EXECUTIVE. 

In  respect  to  the  Chief  Executive,  the  new  Constitution 
quietly  makes  one  change  of  no  inconsiderable  moment, 
though  it  is  so  put  away  in  another  place,  and  wrapped  up  in 
a  mass  of  other  things,  without  the  usual  italics  to  call  atten- 
tion to  it,  that  it  may  escape  observation.  In  case  of  a  failure 
of  popular  election  of  the  Governor  or  Lieutenant-Governor, 
the  old  Constitution  provides  that  the  House  of  Representa- 
tives shall  select  two  names  from  the  four  having  the  largest 
number  of  votes ;  from  which  two,  the  Senate  is  to  designate 
one  for  the  vacant  office.  In  other  words,  the  old  Constitu- 
tion allows  such  a  latitude  of  choice,  as  that  there  may  be 
four  parties  entitled  to  have  their  claims  considered  in  this 
kind  of  election,  and  to  have  their  share  in  the  compromise 
which  such  &  case  may  make  necessary.  The  new  Constitu- 
tion changes  this,  and  provides  (Chap.  IX.  Art.  5)  that,  for 


THE    EXECUTIVE.  289 

the  choice  of  Governor,  Lieutenant-Governor,  and  other  high 
executive  officers,  three  parties,  and  no  more,  shall  hencefor- 
ward be  recognized  in  Massachusetts.  We  have  at  present, 
in  Massachusetts,  three  large  and  well-organized  parties ;  so 
that  the  proposed  monopoly  in  three  parties  may  seem  to 
have  a  suitableness  to  the  immediate  state  of  things,  and  to 
the  satisfaction  of  the  managers  of  those  parties.  But  per- 
haps there  is,  or  may  be,  some  other  party  which  may  aspire 
to  be  fourth  in  numbers;  as  some  Old  Line  Democratic  par- 
ty, some  Maine  Law  party,  or  some  Hoosac  Tunnel  party. 
And  would  such  a  party  feel  that  justice  was  done  it  by  the 
proposed  exclusion  ?  The  fourth  party  might  be  nearly  equal 
in  numbers  to  the  third,  and  it  might  be  more  in  unison  than 
the  third  with  the  first,  or  with  the  second.  Would  not  such 
a  state  of  things,  should  it  occur,  create  a  wish  that  the  old 
constitutional  provision  was  still  in  force,  with  its  larger  lib- 
erty of  choice  ?  The  proposed  provision  looks  like  a  blow 
aimed  in  the  dark  at  the  existence  of  a  fourth  party. 

When  the  first  case  occurred  of  the  succession  of  a  Vice- 
President  to  the  Supreme  Magistracy  of  the  Union,  and  the 
Cabinet  wished  to  get  hold  of  Mr.  Tyler  by  his  weak  side, 
they  caused  him  to  call  himself,  and  be  called,  "  President  pf 
the  United  States."  This  hardly  seemed  accordant  with  the 
language  of  the  Constitution.  But  it  pleased  at  least  one 
person,  and  it  harmed  nobody ;  so  it  met  with  general  acqui- 
escence, and  went  into  precedent.  In  respect  to  the  Lieuten- 
ant-Governor of  Massachusetts,  the  old.  Constitution  provides, 
that,  in  case  of  the  vacancy  of  the  Governor's  chair,  "  the  Lieu- 
tenant-Governor for  the  time  being  shall,  during  such  vacancy, 
perform  all  the  duties  incumbent  upon  the  Governor,"  &c. ; 
and,  accordingly.  Gill,  Lincoln,  Armstrong,  &c.  styled  them- 
selves "  Lieutenant-Governor  and  Commander-in-Chief."  The 
proposed  Constitution  provides  that,  "  whenever  the  chair  of 
the  Governor  shall  be  vacant,  &c.,  the  Lieutenant-Governor 
shall  be  Governor  of  the  Commomvealth"  It  plucks  away  a 
feather  from  his  present  pomp,  but  it  offers  him  a  contingent 
dignity  instead.  It  forbids  him  to  be  saluted  any  longer  as 
"  his  Honor,"  but  it  indemnifies  him  with  a  "  Hail!  King  that 
shalt  be!  "  The  improvement  may  seem  to  be  scarcely  worth 
26 


290  THE    EXECUTIVE. 

changing  the  Constitution  for;  but  there  is  no  harm  in  it,  and 
it  may  be  agreeable  to  persons  who  have  the  office  in  contem- 
plation. If  it  should  be  thought  trifling,  it  is  as  innocent 
trifling  as  could  be  wished. 

In  respect  to  the  position  of  this  officer,  there  is  another  • 
change,  which  also  is  not  indicated  by  any  difference  in  the 
type.  By  the  existing  Constitution,  the  Lieutenant-Governor 
is  to  perform  all  the  duties  of  the  Governor  "  whenever  the 
chair  of  the  Governor  shall  be  vacant,  by  reason  of  his  death, 
or  absence  from  the  Commonwealth,  or  otherwise."  This  is 
definite.  The  proposed  provision  is  not  equally  so.  It  is 
(Chap.  V.  Art.  3),  that,  "whenever,  by  reason  of  sickness,  or 
absence  from  the  Commonwealth,  or  otherwise,  the  Governor 
shall  be  unable  to  perform  his  official  duties,  the  Lieutenant- 
Governor,  for  the  time  being,  shall  have  and  excercise  all  the 
powers  and  authorities  and  perform  all  the  duties  of  Gov- 
ernor." What  degree  or  duration  of  inability  in  the  Governor, 
from  a  headache  or  a  broken  right-arm  to  an  apoplexy,  shall 
authorize  the  Lieutenant-Governor  to  assume  his  superior's 
functions  ?  The  Governor  may  be  able  to  do  some  official 
things,  and  not  others.  He  may  be  able  to  sign  a  commis- 
sion, but  not  to  meet  his  Council.  Who  is  to  be  Chief  Mag- 
istrate then  ?  It  is  not  difficult  to  imagine  cases  of  possible 
dispute  as  to  the  authority  of  that  signature  which  binds  infe- 
rior officers.  "  Under  which  king,  Bezonian?"  John  Adams 
knew  better  what  language  was  fit  to  be  used  for  such  a  case, 
than  the  experimenters  upon  this  part  of  the  State  Constitu- 
tion. 

The  change  in  the  constitution  of  the  Executive  Council, 
making  its  members  to  be  eight  in  number  instead  of  nine, 
and  to  be  eligible  by  a  plurality  of  votes  in  single  districts, 
instead  of  by  the  Legislature,  as  heretofore,  is  in  some  respects 
an  improvement ;  though  causing,  as  it  will,  the  party  of  the 
Governor's  opponents  to  be  represented  in  his  Council  (an 
arrangement  certainly  not  without  its  benefits),  it  may  some- 
times tend  to  lessen  his  responsibility,  by  giving  to  that  body 
something  of  the  character  of  an  Executive  Directory.  At  all 
events,  it  is  not  an  improvement  of  that  urgent  importance 
that  it  is  worth  while  to  obtain  it  next  year  at  a  great  sacrifice 


THE    EXECUTIVE.  291 

in  other  things,  instead  of  obtaining  it  the  year  after  at  no  sac- 
rifice at  all.  We  can  have  it  in  1854  by  adopting  the  pro- 
posed Constitution,  with  all  its  exceptionable  features.  We 
can  have  it  in  1855,  as  ah  independent  measure,  by  the  suc- 
cessive votes  of  two  Legislatures  and  of  the  people.  As  there 
was  next  to  no  opposition  to  it  in  the  Convention,  there 
appears  no  reason  to  apprehend  serious  opposition  to  it  in  any 
quarter.  When  all  parties  are  substantially  of  one  consent 
about  a  thing,  and  it  may  be  had  for  nothing,  it  cannot  be 
wise  to  get  it  at  a  high  price. 

There  is  one  proposed  change  in  the  executive  department, 
of  far  more  material  importance.  Massachusetts  has  intended 
to  have  her  laws  efficiently  and  uniformly  executed  in  every 
part  of  her  territory.  And,  to  that  end,  she  has  taken  care  her- 
self, by  her  highest  delegated  appointing  power,  her  Governor 
and  Executive  Council,  to  appoint  her  highest  executive 
officers  respectively  in  all  and  each  of  her  counties.  All  this, 
it  is  proposed  henceforward  to  do  away.  The  counties  are 
severally  to  elect  their  own  Sheriffs  (Chap.  VII.  Art.  4),  and 
by  that  election  to  determine  how  much  and  how  little  of  the 
law  of  the  Commonwealth  shall  be  executed  within  their 
bounds.  Dukes  County  may  not  like  the  pilot  laws  of  Mas- 
sachusetts. Suffolk  County  may  not  like  the  liquor  laws  of 
Massachusetts.  Of  course  they  choose  their  Sheriffs,  when 
they  get  the  power,  with  a  view  to  nullify  those  laws  in  re- 
spect to  themselves ;  for  when  and  where  the  executive  power 
fails,  the  law  is  a  dead  letter.  Massachusetts  has  now  a  heavy 
hand,  which  on  occasion  she  can  make  felt  in  any  part  of  her 
domain.  Make  the  change  proposed,  and  we  disarm  her  at 
once  in  any  contumacious  county.  As  the  Constitution  now 
stands,  if  a  Sheriff  of  Suffolk,  in  supposed  deference  to  a  Bos- 
ton interest,  refuses  to  serve  process  under  any  Sims  case,  or 
the  like,  or  to  make  a  seizure  under  the  Liquor  Law,  he  stands 
a  chance  of  being  dismissed  immediately  and  finally  by  the 
Governor,  —  the  representative,  for  such  purposes,  of  the  State's 
sovereignty.  Make  the  Sheriff  the  officer,  not  of  the  Common- 
wealth, but  of  the  county,  and  it  will  be  the  county's  will, 
rather  than  the  Commonwealth's,  which  he  may  feel  concerned 
to  execute.     The  population  of  Boston  is  not  worse  than  that 


2^  THE    EXECUTIVE. 

of  other  great  cities.  It  is  much  better  than  that  of  most 
others.  But  it  embraces  elements  such  as  cannot  prudently 
be  trusted  with  control  over  the  question,  whether  or  not  the 
laws  of  Massachusetts  shall  be  faithfully  administered  and 
executed  within  it.  To  take  an  illustration  from  a  sister 
State,  what  chance  of  execution  would  a  process  for  collecting 
rent  have  in  an  anti-rent  county,  with  the  constitutional 
power  to  choose  its  Sheriff? 

So  the  efficient  execution  of  the  laws  depends  mainly  on  the 
faithfulness  of  the  prosecuting  officers.  If  they  will,  they 
shut  their  eyes  to  crimes  and  abuses ;  and  those  crimes  and 
abuses  the  law  then  does  not  see,  and  does  not  punish  nor 
remedy.  Under  the  existing  provisions,  the  Commonwealth, 
through  her  Governor  and  Council,  appoints  and  removes  at 
pleasure  the  District  Attorneys,  and  thus  holds  them  strictly 
responsible  to  herself  for  the  due  execution  of  the  trust.  It  is 
proposed  henceforward  to  choose  the  District  Attorneys  by 
vote  of  the  districts  respectively  in  which  they  are  to  act 
(Chap.  VII.  Art.  4).  The  district  which  can  choose  its  prose- 
cuting officer  will  have  rather  more  power  than  is  consistent 
with  the  general  good,  to  determine  what  offences  and  what 
persons  shall  be  prosecuted  within  its  limits ;  and  men  who 
have  sway  at  nominating  conventions  may  occasionally  prove 
to  be  invested  with  too  much  discretion  over  the  question 
whether  they  will  themselves  be  prosecuted  or  not. 

It  is  no  reply  to  these  remarks  to  say,  that,  by  another  pro- 
vision (Chap.  XIII.  Art.  4,  5),  prosecuting  officers  and  sheriffs 
may  be  removed  or  suspended  by  the  Governor,  and  substi- 
tutes appointed.  The  remedy  is  not  adequate.  The  substi- 
tute, on  the  proposed  plan,  can  only  hold  office  till  the  next 
annual  election.  The  county  or  district  then  re-elects  the 
faithless  officer,  or  some  other  person  who  will  equally  serve 
its  purposes ;  and  by  the  time  there  has  been  again  sufficient 
malversation,  and  sufficient  proof  of  it,  to  justify  another 
executive  interference,  great  part  of  another  year  has  gone, 
carrying  with  it  another  long  period  of  hurtful  maleadminis- 
tration.  And  this  is  a  process  to  be  repeated  endlessly,  or  as 
long  as  the  spirit  of  opposition  in  the  county  or  district  holds 
out 


MAJORITY    OR    PLURALITY.  293 

The  offices  of  Secretary  of  the  Commonwealth,  Treasurer, 
and  Auditor  are  by  the  new  Constitution  made  elective  by 
the  people  directly  (Chap.  VII.  Art.  1),  instead  of,  as  hitherto, 
by  the  people  through  its  Legislature.  As  a  matter  of  con- 
venience, this  may  be  an  improvement ;  and  if  so,  the  change 
would  be  easily  made,  and  probably  without  opposition,  as 
an  independent  measure,  by  the  method  pointed  out  by  the 
existing  Constitution :  though  one  naturally  asks  why  this 
rule  should  not  be  made  to  apply  to  some  other  State  officers, 
as  well  as  to  those  specified ;  as,  for  instance,  to  the  Land 
officer,  or  to  the  Secretary  and  members  of  the  Board  of  Edu- 
cation. Even  the  office  of  Warden  of  the  State  Prison  is,  I 
believe,  made  elective  in  some  States,  where  it  is  intended  to 
give  to  the  general  State  scramble  the  greatest  possible  com- 
prehension and  activity. 


VI. 


MISCELLANEOUS. 

The  question  whether  more  than  half  the  votes  given  in 
elections  shall  be  required  to  fill  an  office,  or  whether  a  mere 
plurality  shall  prevail,  is  one  of  material  importance.  The 
former  method  is  most  consistent  with  the  republican  theory. 
It  may  be  reasonably  argued,  that  no  one  should  be  held  to  be 
elected,  when  there  is  a  larger  number  of  votes  against  than 
for  him,  even  though  the  majority  against  him  should  be  an 
aggregate  of  votes  cast  for  different  persons.  But,  on  the 
other  hand,  there  may  at  any  time  be  more  than  two  parties, 
each  tenacious  of  its  principles  and  candidates,  and  no  one  of 
them  more  numerous  than  the  sum  of  the  rest.  In  that  case 
will  occur  the  inconvenience  of  repeated  fruitless  trials  to 
elect;  offices  may  remain  vacant ;  and  it  is  even  supposable 
that  the  government  shall  be  brought  to  a  stand. 

This  class  of  considerations  has  led  extensively  to  the  intro- 
duction of  the  plurality  principle  in  the  elections  of  other 
States.  Massachusetts  has  adhered  steadfastly  to  the  method 
of  electing  by  majority.  Two  years  ago,  the  Legislature  en- 
26* 


294  MAJORITY    OR    PLURALITY. 

acted  that  a  plurality  should  choose  electors  of  President  and 
Vice-President  and  (on  the  second  trial)  Representatives  in 
Congress  ;  there  being,  as  to  these  matters,  no  provision  in 
the  Constitution.  But  the  Constitution  and  laws,  down  to 
this  day,  recognize  no  election  of  state,  county,  or  town 
officers,  except  by  a  majority  of  all  the  votes. 

It  would  seem  that,  however  the  Constitution  should  deter- 
mine the  main  question,  its  arrangement  should  be  uniform 
and  permanent.  The  existing  constitutional  and  legal  pro- 
visions have  both  these  qualities.  That  of  the  proposed  Con- 
stitution has  neither.  By  the  proposed  provision  (Chap.  IX. 
Art.  5,  6,  7),  a  plurality  cannot,  until  further  legislation,  elect 
the  Governor  nor  other  executive  state  officers.  Representa- 
tives to  the  General  Court,  nor  town  officers.  In  other 
words,  in  these  electiohs,  when  there  are  three  powerful  par- 
ties, there  must  be  a  bargain  between  two  of  them  to  effect  a 
choice.  But  pluralities  are  to  elect  Councillors,  Senators,  and 
county  and  district  officers  (Art.  8).  The  relation  of  this 
twofold  arrangement  to  the  existing  state  of  parties  in  this 
Commonwealth,  and  to  the  compromises  which  have  grown 
out  of  that  state  of  things,  is  apparent.  But  upon  what  con- 
stitutional doctrine,  or  what  demand  of  the  public  welfare,  the 
distinction  is  founded,  and  why  the  plurality  rule  has  not 
precisely  the  same  applicability  to  all  cases  alike,  is  not  so 
obvious. 

At  all  events,  this  might  seem  certain,  that  the  great  ques- 
tion of  majority  or  plurality  elections  is  one  to  be  settled  in 
some  way  by  the  Constitution,  and  not  to  be  left  to  the 
caprice  and  party  calculations  of  successive  Legislatures ;  —  a 
majority  system  to  be  enacted  by  one  Legislature,  and  a  plu- 
rality system  by  the  next,  according  as  one  or  the  other  may 
be  thought  best  to  subserve,  for  the  moment,  the  purposes  of 
party.  But  the  proposed  Constitution  expressly  provides 
(Chap.  IX.  Art.  5,  6,  7),  that,  in  all  cases  in  which  majority 
elections  are  still  retained,  it  shall  be  competent  to  the  Legis- 
lature to  substitute  a  plurality,  and  again  to  go  back  to  a  ma- 
jority vote,  at  its  pleasure.  It  is  true  that  the  provision  is, 
that  a  law  of  this  description,  so  far  as  it  relates  to  state  offi- 
cers, shall  not  take  effect  till  a  year  has  expired  from  the  time 


SECRET    BALLOT. 


295 


of  its  enactment.  But  party  calculations  are  apt  to  look  for- 
ward beyond  the  term  of  twelve  months.  Andy  further,  if  a 
law  on  this  subject  cannot  go  into  effect  till  after  twelve 
months,  neither  can  its  repeal  do  so.  So  that  a  party  in  power 
is  able  to  determine  irrevocably,  for  its  own  uses,  the  principles 
on  which  the  elections  for  the  second  following  year  shall  be 
made.  The  people  may  be  ever  so  much  disgusted  with  a 
wrong  that  has  been  done,  and  may  send  ever  so  strong  a 
representation  to  the  General  Court  the  next  year  to  set  it 
right ;  but  to  set  it  right  is  no  longer  in  their  power.  The 
Constitution  precludes  them  from  getting  any  remedy  till 
after  the  second  year ;  till  after  the  time  has  passed  to  which 
the  corrupt  legislation  they  desire  to  rebuke  and  repair  was 
contrived  to  apply.  , 

The  provision  respecting  Secret  Ballot  (Chap.  IX.  Art.  2) 
recognizes  a  sound  principle,  and  enforces  an  important  prac- 
tice. The  gross  abuses  which  have  existed  loudly  demand 
its  adoption.  It  should  have  been  presented  as  a  separate 
article,  so  that  we  could  vote  for  it  without  at  the  same  time 
making  great  sacrifices  in  other  respects.  But  the  Secret 
Ballot,  in  precisely  the  effective  form  proposed,  is  within  our 
reach  by  mere  legislative  enactment.  Its  reasonableness  and 
popularity  are  such,  that  it  must  presently  be  re-enacted,  what- 
ever party  is  in  power ;  and  when  re-enacted,  it  will  stand  firm. 
The  Whigs,  it  is  true,  repealed  it  last  winter ;  but  they  have 
been  sitting  on  the  stool  of  repentance  ever  since.  Nothing 
did  more  than  their  foolish  stand  on  that  question,  to  throw 
them  into  the  miserable  minority  in  which  they  appeared  in 
the  Convention.  They  will  not  try  it  again.  They  will  have 
to  yield  the  Secret  Ballot  by  law.  Constitution  or  no  Consti- 
tution. 

The  obligation  of  the  General  Court  to  receive  pay  for  one 
hundred  days  only  (Chap.  I.  Art.  3)  is  interpreted  as  a  virtual 
prohibition  to  sit  longer.  In  that  view,  it  might  be  good,  if 
accompanied  by  a  provision  that  no  more  business  should 
ever  come  before  the  Legislature  than  would  be  well  and  care- 
fully done  in  that  time.  Some  years  ago,  on  account  of  some 
alleged  bequests  to  public  charities,  supposed  to  have  been 


296  LIMITATION    OF    LEGISLATIVE     SESSIONS. 

wheedled  out  of  legatees  in  the  weakness  of  their  last  hours, 
there  was  a  proposition  in  the  Legislature,  that  no  will  should 
be  admitted  to  probate,  if  made  within  six  months  of  the 
testators  death.  An  amendment  was  moved  of  an  additional 
clause,  providing  that  no  man  should  die  till  six  months  after 
making  his  will ;  upon  which  the  measure  subsided.  If  the 
business  is  left  unfinished  at  the  end  of  a  hundred  days,  and 
the  Governor  has  to  call  an  extra  session  to  complete  it,  with 
the  cost  of  extra  travel  added  to  pay,  there  will  be  little 
money  saved.  This  case  has  actually  occurred  during  the 
present  year  in  New  York,  under  a  constitutional  provision 
similar  to  that  now  proposed  to  be  introduced  among  us. 

If  a  limitation  of  the  Legislature  to  sessions  of  a  hundred 
days  be  a  good  object,  why  not  so  provide  in  direct  lan- 
guage ?  It  would  be  the  better  and  safer  way.  Who  knows 
that  the  stoppage  of  pay  would  in  every  case  send  the  Legis- 
lature home  ?  Suppose  a  different  state  of  things.  Suppose, 
as  the  end  of  the  hundred  days  approaches,  a  measure  to  be 
pending,  involving  large  pecuniary  interests.  The  Senate 
and  House  cannot  agree  about  adjourning.  Some  members 
hostile  to  the  measure,  but  not  able  to  work  for  nothing  and 
find  themselves,  ask  leave  of  absence,  and  easily  get  it. 
Others,  favorable  to  it,  are  able  at  their  own  expense,  or  at  the 
expense  of  somebody  behind  the  scene,  to  hold  out  and  legis- 
late some  days  longer.  I  can  easily  imagine  cases  in  which  I 
should  not  think  it  for  my  advantage  to  have  my  representa- 
tive starved  away  from  his  post. 

As  to  the  Militia,  the  subordination  of  the  military  to  the 
civil  authority  has  always  been  held  to  be  a  necessity  of  our 
institutions.  It  stands  prominent  in  the  Bill  of  Rights  (Art. 
17).  One  way  which  our  ancestors  took  to  secure  it  was  by 
giving  the  appointment  of  the  Major- Generals  to  the  people 
assembled  in  their  Legislature.  It  is  now  proposed  to  ex- 
punge this  feature  of  the  militia  organization,  and  to  have  an 
armed  force  wholly  officered  by  itself,  with  the  exception  of 
the  Commander-in-Chief  (Chap.  XI.  Art.  5.)  On  the  other 
hand,  soldierly  honor  is  delicate,  and  some  rather  strong  ex- 
periments upon  it  are  projected.     Henceforward  an  officer  is. 


MILITIA.  297 

every  three  years,  to  have  the  continuance  of  his  commission 
subject  to  the  vote  of  the  inferior  officers  or  the  privates  of 
his  command  (Art.  11).  It  may  be  that  offices  in  the  militia, 
on  these  terms,  may  continue  to  be  attractive  to  men  of  char- 
acter ;  but  I  should  not  like  to  guarantee  it.  Suppose  a  com- 
pany to  be  in  actual  service  at  the  time  when  the  captain's 
commission  is  about  to  expire  by  limitation;  he  will  be  under 
the  command  of  his  men,  instead  of  their  being  under  his. 
And  so  of  the  commanders  of  regiments,  brigades,  and  divis- 
ions, who  are  to  have  respectively  inferior  officers  for  their 
constituents.  The  judicious  arrangements  of  an  expedition 
or  a  campaign  may  be  all  frustrated  by  the  advancement,  at 
the  critical  moment,  of  a  new  man  over  the  head  of  their  pro- 
jector. And,  when  an  ambitious  subordinate  may  intrigue 
with  his  command  to  supplant  his  superior,  does  it  not  follow 
that  the  arm  of  military  discipline  will  be  very  essentially 
crippled  ? 

There  is  another  change  in  the  constitutional  provisions  re- 
lating to  the  militia,  of  greater  importance.  The  Constitution, 
as  it  has  stood  from  1780  to  1853,  after  making  the  Governor 
Commander-in-Chief  "of  all  the  military  forces  of  the  State, 
by  sea  and  land,"  goes  on  to  provide  that  he  shall  never 
"transport  any  of  the  inhabitants  of  this  Commonwealth,  or 
oblige  them  to  march  out  of  the  limits  of  the  same,  without 
their  free  and  voluntary  consent,  or  the  consent  of  the  General 
Court."  The  idea  of  those  who  framed  this  prohibition  was, 
that,  when  soldiers  should  be  wanted  for  foreign  wars,  they 
could  be  hired,  and  that  the  citizen  was  not  to  be  forced  away 
from  his  home  on  such  service ;  that  conscriptions,  the  odious 
resort  of  military  tyrannies,  should  not  be  permitted  here.  It 
is  now  proposed  to  do  away  with  this  restriction,  and  to  im- 
pose no  limit  to  the  Governor's  power  over  the  militia,  except 
as  implied  in  this,  that  the  authority  expressly  given  him  goes 
no  further  than  "  to  call  out  any  part  of  the  military  force  to 
aid  in  the  execution  of  the  laws,  to  suppress  insurrection,  and 
to  repel  invasion."  "  To  suppress  insurrection."  Where  ? 
In  Florida  ?  "  To  repel  invasion."  Where?  In  California? 
"  To  aid  in  the  execution  of  the  laws."  Where  ?  At  Trieste 
and  Venice,  when  we  have  quarrelled  with   Austria  ?     For 


298 


HARVARD    COLLEGE. 


undoabtedly  a  declaration  of  war  is  a  "law."  The  Constitu- 
tion of  the  United  States  confers  on  Congress  power  over  the 
militia  in  these  terms  ;  but  it  is  in  no  such  breadth  of  meaning, 
nor  does  either  that  instrument,  or  the  Constitution  of  Massa- 
chusetts hitherto,  confer  it  on  the  Governor.  The  proposed 
alteration  may  be  interpreted  so  as  to  invest  that  magistrate 
with  a  terrible  power.  When  the  time  shall  come  that  a  reck- 
less partisan  Governor,  ambitious  of  a  "  national "  name  and 
promotion,  shall  "call  out"  some  Massachusetts  regiments, 
under  the  penalties  of  martial  law,  for  an  expedition  to  Nica- 
ragua, the  Sandwich  Islands,  or  Japan,  w^e  may  wish,  when 
it  is  too  late,  that  we  had  the  old  constitutional  security  for 
ourselves  and  our  children.  In  all  times,  the  power  to  compel 
the  service  of  the  subject  in  distant  wars  has  been  held  to  be 
one  of  the  most  intolerable  attributes  of  despotism. 

The  proposed  provision  (Chap.  XII.  Art.  1)  which  author- 
izes the  Legislature  "  to  grant  any  further  powers  to  the  Pres- 
ident and  Fellows  of  Harvard  College^  or  to  alter,  limit,  annul, 
or  restrain  any  of  the  powers  now  vested  in  them,  provided 
the  obligation  of  contracts  shall  not  be  impaired,"  appears  to 
have  encountered  little  opposition,  as  indeed  might  have  been 
expected;  for  it  is  merely  sounding  words.  It  makes  no 
change  in  the  condition  or  liabilities  of  that  institution.  Cor- 
porations have  no  existence,  and  no  rights,  but  what  are  given 
by  their  charter.  Except  so  far  as  that  protects  them,  they 
are  wholly  at  the  Legislature's  mercy.  The  Constitution  of 
the  United  States  —  the  supreme  law  of  the  land  —  secures 
the  inviolability  of  contracts.  If  the  charter  of  Harvard  Col- 
lege is  not  a  contract,  then  the  State  government  may  now 
do  with  Harvard  College  whatever  in  its  wisdom  and  justice 
and  mercy,  or  whatever  in  temporary  injustice  and  folly,  it 
will.  If  that  charter  is  a  contract,  then  any  act  of  the  Legis- 
lature infringing  it  is  null;  it  has  no  validity  in  law;  it  is  not 
worth  the  parchment  it  is  written  on.  The  relations  of  the 
Legislature  and  Harvard  College  will  be  not  a  jot  or  tittle 
different,  whether  the  proposed  provision  in  respect  to  them  is 
sanctioned  or  set  aside. 

The  revised  Constitution  proposes  (Chap.  XII.  Art.  3)  to 


HARVARD    COLLEGE.  299 

repeal  the  legislation  of  the  last  forty  or  fifty  years  in  respect 
to  the  Board  of  Overseers  of  the  College,  and  reinstate  that 
Board  as  it  was  established  by  the  Constitution  of  1780 ;  viz. 
so  as  to  have  it  consist  of  the  Governor,  Lieutenant-Governor, 
Council,  and  Senate,  the  President  of  the  College,  and  the 
Congregational  ministers  of  Boston,  Cambridge,  Watertown, 
Charlestown,  Roxbury,  and  Dorchester.  In  the  result  of  pre- 
vious legislation  in  1810  and  1812,  an  act  was  passed  by  the 
General  Court  in  1814,  providing  that,  with  the  consent  of 
the  Corporation  and  Overseers  (which  was  subsequently 
given),  the  Speaker  of  the  House,  and  fifteen  ministers  of 
Congregational  churches,  with  fifteen  laymen,  to  be  elected  by 
the  Overseers  as  vacancies  should  occur,  should  be  substitut- 
ed in  the  Board  for  the  Congregational  ministers  of  the  six 
neighboring  towns.  In  1834,  with  the  same  consent  of  the 
Corporation  and  Overseers  (made  a  condition  by  the  act), 
the  Overseers  were  empowered  to  choose  clerical  members  of 
their  body,  being  ministers  of  other  than  Congregational 
churches.  In  1851,  the  act  was  passed,  now  in  force,  which, 
with  the  same  consent,  constituted  the  Board  of  five  high 
officers^  of  the  Commonwealth,  the  President  and  Treasurer 
of  the  College,  and  thirty  persons  to  be  chosen  from  time  to 
time  by  joint  ballot  of  the  Legislature.  The  Board  thus 
formed,  the  proposed  Constitution,  copying  the  article  of  the 
Constitution  of  1780,  now  proposes  to  dissolve,  —  to  displace 
all  the  recently  and  previously  elected  members,  consisting  of 
different  religious  denominations,  and  seat  in  their  places, 
among  others,  the  Congregational  ministers  of  Boston  and 
the  vicinity ;  these  Congregational  ministers  being  in  number 
some  sixty  or  seventy,  a  clear  majority  of  the  whole  Board. 

As  far  as  I  have  looked  into  the  debates  of  the  Convention, 
I  find  no  light  on  the  history  of  this  proceeding.  Did  the 
Convention  —  for  reasons  unexplained,  and  not  to  be  guessed 
at  —  actually  decide  to  reaffirm  the  original  provision  of  1780, 
overriding  and  annulling  all  subsequent  legislation  on  the 
subject  ?  Or  is  it  possible,  on  the  other  hand,  that  here  is  a 
mistake  in  the  Convention's  declaration  to  the  people  of  its 
own  doings  ?  Who  is  authorized  to  say  this  ?  Here  is  the 
formal  document  in  our  hands,  signed  by  the  President  of  the 


300  HARVARD    COLLEGE. 

Convention,  and  countersigned  by  its  Secretaries.  So  far  as 
the  public  knows,  there  is  nothing  behind  this  document  — 
no  engrossed  instrument  —  for  us  to  appeal  to,  as  more  au- 
thentic and  certain  evidence  of  what  the  Convention  actually 
proposes  for  our  votes  ;  and,  even  if  there  be  any  thing  of  that 
kind,  this  pamphlet  is  what  is  laid  by  the  Convention  before 
the  people,  for  them  to  vote  upon.  This  part  of  the  revised 
Constitution  is  known,  by  all  the  proof  by  which  any  other 
part  is  known,  to  have  been  approved,  and  presented  for  rat- 
ification, by  the  action  of  that  body.  If  this  part  of  the  re- 
vised instrument  does  not  truly  represent  the  will  of  the  Con- 
vention, how  do  we  know  that  any  other  part  does  ?  Where 
is  our  proof,  that,  in  casting  our  affirmative  vote,  we  shall 
really  confirm  what  the  Convention  designed  ? 

At  all  events,  if  we  vote  for  this  project  of  a  Constitution, 
one  thing,  among  others,  which  we  aid  in  doing,  is  this  :  we  re- 
create the  old  Board  of  Overseers  of  Harvard  College,  with 
all  its  circumstances  so  little  in  harmony  with  the  views  of  the 
present  day.  We  turn  out  Episcopalians,  Baptists,  Univer- 
salists,  and  Methodists,  —  laymen  and  ministers,  —  and  put 
in  their  places  a  large  number  of  Congregational  clergymen. 
If  this  provision,  included  in  and  inseparable  from  the  new  Con- 
stitution, takes  effect,  then  the  Board  of  Overseers  will  be  con- 
stituted agreeably  to  it,  after  the  first  Monday  of  next  Febru- 
ary (Chap.  XIII.  Art.  7).  Is  it  said  that  subsequent  legislation 
may  correct  the  blunder  (if  blunder  it  be),  and  restore  the 
present  organization  ?  But  it  may  be  presumed,  that  subse- 
quent legislation  will  resemble  previous  legislation,  in  making 
its  provisions  contingent  on  the  consent  of  the  Overseers.  If  so, 
what  Overseers  will  be  competent  to  give  that  consent?  The 
proposed  Constitution,  if  it  prevails,  assumes  to  supersede  and 
displace  the  present  Board.  If  its  provision  is  ratified  and  is 
valid,  there  will  be  no  Board  after  February,  except  that  after 
the  pattern  of  former  centuries;  and  whether  the  sixty  or  more 
Congregational  ministers  will  consent  voluntarily  to  abdicate 
the  trust  thus  unexpectedly  thrust  upon  them,  is  what  no  one 
can  pretend  certainly  to  know. 

However  these  matters  may  be  viewed,  they  do  not  tend  to 
heighten  our  confidence  in  the  careful  deliberation  and  exact- 


SCHOOL    FUND.  301 

ness  with  which  our  business  was  done  in  the  Convention. 
They  rather  go  to  create  a  suspicion,  that  in  other  particulars, 
where  the  lapse  is  less  obvious,  the  Convention  nnay  not  have 
proceeded  with  that  circumspection  which  the  transaction  of 
such  great  affairs  demands. 

Chap.  IX.  Art.  8  is  mere  surplusage.  It  simply  repeats  Chap. 
II.  Art.  3,  Chap.  VI.  Art.  4,  and  Chap.  VII.  Art.  4.  It  stands, 
however,  as  another  evidence  of  the  haste  with  which  the  in- 
strument was  digested.  So  in  Chap.  V.  Art.  1,  a  paragraph 
is  designated  by  the  change  of  type  as  not  among  "  existing 
provisions  of  the  Constitution,"  when,  in  fact,  it  does  make  a 
part  of  that  instrument,  by  the  tenth  amendment,  adopted  in 
1831. 

The  provision  (Chap.  XII.  Art.  4)  "  for  the  enlargement  of 
the  School  Fund  of  the  Commonwealth,  until  it  shall  amount 
to  a  sum  not  less  than  two  millions  of  dollars,"  is  a  good  one. 
The  money  could  be  well  used  in  that  way.  But  there  is  no  oc- 
casion to  disturb  the  Constitution  for  it.  A  common  legislative 
act  will  answer  all  the  purpose  ;  and  that  there  will  be  no  op- 
position to  such  an  act,  whatever  party  is  in  power,  is  proved 
by  the  fact,  that  in  the  Convention  the  vote  for  the  proposition 
was  unanimous.  The  present  fund  was  established,  not  by 
constitutional  provision,  but  by  common  legislation.  The 
Statute  of  1834  (Chap.  169)  appropriated  a  million  of  dollars 
for  the  purpose.  The  Statute  of  1851  (Chap.  112)  added  half 
a  million.  A  Statute  of  1854  may  add  another  half-million 
(which  all  parties  are  agi'eed  to),  and  the  work  of  this  part  of 
the  proposed  Constitution  is  done. 

The  Fourteenth  Chapter  contains  certain  provisions  in  re- 
spect to  Future  Amendments  of  the  Constitution. 

In  the  first  place,  specific  and  particular  amendments  may 
be  made  by  certain  action  of  two  successive  Legislatures, 
sanctioned  by  a  subsequent  popular  vote  (Chap.  XIV.  Art.  3). 
Here,  the  existing  constitutional  provision  to  this  effect  is  in- 
corporated into  the  new  Constitution.     There  is  no  change. 

Another  Article  (2)  recognizes  "  the  power  of  the  Legislature 
to  take  action  for  calling  a  Convention,"  "  as  heretofore  prac* 
27 


302 


FUTURE    AMENDMENTS. 


tised  in  this  Commonwealth."  This  (which  comes  in  a  pro- 
viso) may  be  thought  superfluous,  as  the  practice  has  sufficient- 
ly established  the  right,  which  indeed  did  not  need  practice  to 
establish  it;  and  if,  in  a  hot  party  discussion,  it  has  been  pro- 
fessedly called  in  question  within  the  last  two  or  three  years, 
the  fact  that,  after  all  the  objection  made,  the  practice  has 
been  followed  up  in  yet  another  instance,  establishes  it  on  a 
firmer  basis  than  before.  The  party  which  recently  opposed 
it  and  denied  its  legitimacy  has  given  in.  At  its  more  recent 
State  Convention,  it  declared  itself  in  favor  of  certain  consti- 
tutional amendments,  "  to  be  obtained,  if  possible,  through  the 
action  of  the  Legislature ;  and,  failing  thereby,  a  new  popular 
Convention,  based  upon  an  equality  of  representation." 

These  two  methods  of  obtaining  constitutional  amendments, 
which  from  time  to  time  may  be  desired,  are  already  in  force. 
Are  they  sufficient?  Because,  if  so,  it  is  not  worth  while  to 
provide  for  keeping  the  question  of  constitutional  amendments 
perpetually  in  the  field,  as  a  football  for  parties.  A  constitu- 
tion of  government  is  supposed  to  have  a  degree  of  stability 
and  permanency.  We  expect  to  make  it  productive  of  a 
maximum  of  public  good  by  wise  applications  of  it,  not  by 
frequent  revisals  and  alterations,  involving  critical  experiments. 
One  interest  may  perhaps  profit  by  it  peculiarly  at  one  time, 
and  another  at  another.  But  we  do  not  expect  to  be  taking  it 
to  pieces  on  every  momentary  dissatisfaction,  to  adjust  its  ma- 
chinery to  the  interests,  passions,  or  fancies  of  the  hour.  It  is 
not  worth  while  to  encourage  ourselves  or  others,  on  every 
passing  occasion  of  disappointment  or  defeat,  to  go  to  work 
on  a  reconstruction  of  the  whole  frame  of  government.  That 
was  the  way  they  did  in  the  Italian  republics  of  the  Middle 
Age,  till  the  people  were  always  making  constitutions,  instead 
of  making  and  enjoying  laws ;  and  a  man  needed  to  have  a 
quick  memory  to  tell  what  government  he  lived  under  this 
year,  and  could  have  merely  a  guess  as  to  what  government 
he  would  be  living  under  the  next.  Florence,  before  her  frol- 
ics of  this  kind  were  brought  to  an  end  by  the  Grand  Ducal 
despotism,  had  at  one  time,  if  I  remember  aright,  five  consti- 
tutions in  ten  years.  It  was  not  the  way  to  a  quiet  life. 
.     There  is  some  danger  that,  should  the  fundamental  law 


FUTURE    AMENDMENTS.  303 

hold  out  a  formal  invitation  to  frequent  and  easy  revolutions, 
it  will  be  too  readily  thought,  whenever  any  thing  goes  wrong, 
that  a  flaw  in  the  Constitution  is  the  cause ;  from  which  it 
may  probably  follow,  that,  in  patching  one  supposed  breach, 
another  will  be  made,  and  so  on  ;  the  process  being  attended 
at  every  step  with  much  exasperation,  anxiety,  and  discontent. 
As  with  violent,  so  with  peaceable  revolutions :  there  is  no 
good  done,  but  some  harm,  by  anticipating  occasions  for  them. 
When  the  necessity  comes,  it  will  manifest  itself  and  take  care 
of  itself.  And,  as  often  as  constitutional  amendments  in 
Massachusetts  are  necessary,  the  methods  already  in  use  for 
obtaining  them  seem  abundantly  sufficient  for  the  need. 

But  the  framers  of  the  proposed  Constitution  view  these 
things  differently.  Their  treatment  supposes  an  incurable 
chronic  distemper  of  the  body  politic,  requiring  attention  to  be 
turned  periodically  to  the  application  of  pharmacy.  Once  in 
every  twenty  years  the  people  must,  perforce,  sit  in  judgment 
on  their  Constitution  (Chap.  XIV.  Art.  1).  The  child  now 
ten  years  old,  if  he  survives  threescore  and  ten,  must  four 
times,  since  he  was  of  an  age  to  know  what  government 
means,  have  witnessed  long  and  sharp  agitations  of  the  most 
momentous  questions  a  community  can  entertain. 

But  even  this  does  not  satisfy  our  Constitution-makers.  It 
is  not  enough  for  them  to  have  the  question  perpetually  pend- 
ing a  quarter  of  the  time  (for  five  years  in  every  twenty  are 
little  enough  to  allow,  from  the  opening  to  the  closing  of  the 
argument)  ;  they  have  made  arrangements  for  throwing  it 
in,  every  year,  among  the  elements  of  partisan  strife  and  in- 
trigue. That  is  to  say,  they  have  provided  (Chap.  XIV.  Art. 
2),  that,  "  whenever  towns  or  cities  containing  not  less  than 
one  third  of  the  qualified  voters  of  the  Commonwealth  "  shall, 
at  the  autumnal  election,  request  the  Legislature  to  take  the 
sense  of  the  people  on  the  calling  of  a  Convention  to  revise 
the  Constitution,  it  shall  be  the  duty  of  the  Legislature  to 
bring  the  people  to  that  vote.  There  may  be  no  occasion 
whatever  for  the  step.  There  may  be  no  decent  pretence  of 
occasion  for  it.  The  people,  if  called  to  vote,  may  vote  it 
down  by  vast  majorities.  The  less  than  fifth  part  of  the  voters 
of  the  Commonwealth  necessary  to  bring  the  people  to  that 


304 


CONCLUSION. 


vote  (for  less  than  a  fifth  part  may  be  so  distributed  as  to  give 
lean  majorities  in  "tdwns  or  cities  containing  not  less  than 
one  third  of  the  qualified  voters  ")  may  not  be  forthcoming, 
nor  one  tenth  of  that  small  fraction.  But  how  often  will  it 
happen,  that  a  faint  prospect  of  gaining  a  sufficient  number 
of  the  people  to  the  movement  will  be  motive  enough  with 
unquiet  spirits  to  prompt  them  to  make  the  attempt?  And 
how  often  will  the  suggestion  of  such  an  agitation,  thrown  in 
as  a  make-weight  with  other  matters,  be  an  instrument  in  the 
hands  of  crafty  party  managers  in  getting  what  they  may 
choose  to  claim  ?  How  often,  under  this  invitation,  which  the 
proposed  Constitution  throws  out,  will  the  promise  or  the 
threat  of  attempting  to  work  up  the  requisite  fragment  of  the 
people  to  such  action,  be  an  element  in  the  annual  election- 
eering ?  Will  it  be  every  year,  or  every  other  year,  or  one 
year  in  three  ?  And  will  our  government  be  the  safer ;  or,  if 
not  required  by  the  safety  of  our  government,  will  our  party 
divisions  be  less  irritating,  and  our  lives  more  comfortable,  for 
this  new  invitation  to  party  turbulence  and  chicane,  which  it 
is  proposed  annually  henceforward  to  extend  ?  Should  we 
not  invite  by  this  provision  some  uncompensated  annoyances 
of  a  perpetual  state  of  revolution  ? 


CONCLUSION. 

In  the  foregoing  pages,  I  have  set  down  some  of  the  reasons 
which  compel  me  to  vote  NO  on  the  first  of  the  questions 
presented  to  the  people  by  the  recent  Convention,  —  the  ques- 
tion relating  to  that  part  of  the  revised  Constitution  which 
embraces  the  Frame  of  Government  for  the  Commonwealth. 
In  my  view,  some  of  the  innovations  which  It  proposes  — 
and,  among  them,  some  of  the  most  important —  are  entirely 
unsustained  by  good  reasons,  and  can  only  be  fruitful  of  evil ; 
while,  of  the  really  beneficial  changes  which  it  offers,  there  is 
not  one  which  cannot  be  obtained,  or  which  would  not  proba- 
bly be  obtained,  with  a  very  little  delay,  through  simple  legis- 
lative action,  or  through  the  method  of  amendment  provided  by 
the  existing  Constitution.     Under  these  circumstances,  I  can- 


CONCLUSION.  305 

not  think  I  should  be  acting  the  part  of  a  man  of  common 
sense,  to  make  any  considerable  sacrifice  of  other  just  con- 
stitutional principles  and  provisions  for  their  attainment;  cer- 
tainly not  to  buy  them  at  the  cost  of  such  mischievous  pro- 
visions as  those  of  the  new  Constitution  relating  to  the  Ju- 
diciary and  the  basis  of  representation. 

The  provisions  of  the  existing  Constitution,  in  respect  to 
the  House  of  llepresentatives,  are  far  from  good ;  but  that  is 
no  reason  why  we  should  supersede  them  by  others  more  sub- 
ject than  themselves  to  the  same  class  of  objections,  —  more 
unjust,  and,  what  is  worse,  increasingly  more  unjust  from  cen- 
sus to  census.  If  we  are  not  at  present  prepared  to  apply  a 
full  remedy  to  the  evil,  let  us  not,  in  blind  impatience,  extend 
and  aggravate  it.  And,  meanwhile,  it  is  by  no  means  beyond 
reasonable  expectation,  that,  as  from  time  to  time,  by  the  oper- 
ation of  the  existing  Constitution,  more  and  more  of  the 
small  towns  exchange  their  annual  representation  for  repre- 
sentation only  a  part  of  the  time  (which  is  the  great  evil  com- 
plained of),  that  provision  of  the  Constitution  will  work  its 
way  into  extensive  use,  which  authorizes  them  to  associate 
together  for  annual  representation,  —  thus  approximating  a 
universal  district  system. 

I  have  surveyed  the  subject  from  the  point  of  view  of  one 
opposed,  in  all  political  action,  to  the  Slave  Power  which 
governs  this  country.  I  am  a  member  of  that  party  (of 
whomsoever  composed)  which  aims,  under  the  Federal  Con- 
stitution, to  nationalize  and  fortify  liberty,  to  localize  and  dis- 
courage slavery.  But  I  cannot  undertake  to  act  on  all  other 
questions  with  this  or  that  man  who  sympathizes  with  me  on 
this  question.  In  my  belief,  history  will  presently  be  saying, 
that  the  course  of  Massachusetts  Whigs,  in  these  last  years, 
has  been  one  of  extreme  folly,  interspersed  with  complicity  in 
some  great  national  crimes.  But  I  am  not  going  to  take  part 
in  bringing  discredit  on  our  excellent  Massachusetts,  and 
trouble  on  ray  fellow-citizens  and  my  posterity,  for  the  sake 
of  punishing  the  sins  of  the  Whigs.  When  I  attached  my- 
self to  the  Free  Soil  party,  I  came  under  no  engagement  in 
respect  to  changes  in  the  Constitution  of  this  Commonwealth. 
If  my  memory  serves  me,  the  State  Committee  of  that  party, 


306  CONCLUSION. 

in  their  address  published  early  in  this  year,  declared  that  this 
question  of  constitutional  amendments  was  not  a  party  ques- 
tion. At  all  events,  with  or  without  the  leave  of  that  Com- 
mittee, such  is  my  opinion.  It  is,  or  should  be,  a  question 
quite  aside  from  party  ;  rather,  a  question  altogether  above  it. 
And  so  far  as  the  Free  Soil  party  should  be  connected  with 
the  support  of  some  of  the  specific  amendments  now  proposed, 
the  party  would,  I  think,  be  injured  by  that  connection,  and 
its  great  objects  be  prejudiced  and  obstructed. 

While  I  have  spoken  freely  of  the  proposed  experiments 
upon  the  Great  Charter  of  our  Massachusetts  liberties,  it  must 
be  superfluous  to  say,  that  it  has  been  without  the  slightest 
intimation  of  want  of  respect  for  any  to  whom  these  experi- 
ments appear  in  a  different  light.  In  the  majority  of  the  Con- 
vention were  men  eminently  virtuous,  disinterested,  and  pa- 
triotic. I  would  not  say  that  a  man  of  that  majority  was 
wanting  in  those  qualities.'  But  that  is  not  the  question 
which  we  are  presently  to  vote  upon.  The  question  is, 
whether  the  great  changes  proposed  will  conduce  to  the  honor 
and  prosperity  of  Massachusetts,  to  the  safety,  welfare,  and 
satisfaction  of  ourselves  and  our  children. 


THE    END. 


IK 

I  SS-3 


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